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Roe’s Lone Remaining Defender Nominated to Ninth Circuit?


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iroeis-lone-remaining-defender-nominated-ninth-circuit-ed-whelanNRO Bench Memos: Ed Whelan

January 27, 2012



After Justice Blackmun’s death more than a dozen years ago, I hadn’t realized that there was anyone left who would defend the actual reasoning (if that term isn’t wholly out of place) of Roe v. Wade. As I’ve documented (in point 2 here), even liberals who support a right to abortion condemn Roe in scathing terms. As one of Blackmun’s former clerks (“who loved Roe’s author like a grandfather”) put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” And:


Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.*


In the decades since Roe, a cottage industry of legal academics has been busy trying to explain how its result could be justified by other reasoning.


So it’s a very unpleasant surprise to discover that perhaps the lone remaining defender of Roe has been nominated by President Obama to a Ninth Circuit seat. Andrew D. Hurwitz, whose confirmation hearing took place yesterday, celebrates in this law-review essay from a decade ago the “crucial influence” that the abortion opinions issued by Judge Jon O. Newman in 1972 had on “the outcome and the reasoning” in Roe. Hurwitz, who was a law clerk for Newman at the time, contends that Newman’s “careful and meticulous analysis of the competing constitutional issues” was reflected in “almost perfect lockstep” in Roe.



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