What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision

by Jack M. Balkin (editor)

In January 1973, the Supreme Court’s opinion in Roe v. Wade struck down most of the country's abortion laws, and held for the first time that women had a constitutional right to safe and legal abortions. Three decades later, Roe v. Wade remains one of the Supreme Court's most controversial decisions, and political struggles over abortion rights still divide American politics. Roe has emerged as a central issue in federal judicial nominations, becoming a powerful symbol in debates about judicial restraint, judicial activism, and the proper role of courts in a democratic society.
In What Roe v. Wade Should Have Said , eleven distinguished constitutional scholars rewrite the opinions in this landmark case in light of thirty years of experience but making use only of sources available at the time of the original decision. Taking positions both for and against the constitutional right to abortion, the contributors offer novel and illuminating arguments that get to the heart of this fascinating case. In addition, Jack Balkin gives a detailed introduction to Roe v. Wade, chronicling the history of the Roe litigation, the constitutional and political clashes that followed it, and the state of abortion rights in the U.S. today.
Contributing their versions of Roe Anita Allen, Akhil Amar, Jack M. Balkin, Teresa Stanton Collett, Michael Stokes Paulsen, Jeffrey Rosen, Jed Rubenfeld, Reva Siegel, Cass Sunstein, Mark Tushnet, and Robin West.

Genres: Law, Nonfiction, Feminism

368 pages, Hardcover

First published August 1, 2005

Reviews

[Jen · Rating 4 out of 5]

I read this for a course on feminist legal theory, and it was easily one of my favourite readings from the class. If you read quickly through it, though, as I had to, there's a limit on how much of the theory you can take in. (Thus: I'm re-reading it this summer.)

If you don't know much about the original arguments in Roe v Wade, or aren't familiar with the legal jargon of case law, you might want to have some references on hand while reading this, to keep up.

I especially recommend this book for those who understand why Roe v Wade is actually on pretty shaky legal ground; Balkin's majority opinion and the other pro-choice contributors provide really interesting and important alternative ways of looking at and framing reproductive and sexual freedom as guaranteed by the U.S. Constitution. The anti-choice and partial-concurrence/partial-dissent contributors make interesting points, as well; their value, in my opinion, comes from the identification of the weaknesses and counter-arguments that the pro-choice movement needs to be prepared for in creating a new legal basis for reproductive and sexual freedom.

The premise provided for their contributions to the book - that the contributors could only use case law and knowledge that was available in 1973 - makes sense for the book's mission of suggesting doctrines of constitutional law that the decision should have been based on (instead of a privacy doctrine). What I'd really like to see from these contributors, though, are the opinions that would make up the decision in a modern-day Roe v Wade: what post-1973 case law would they rely on, what recent scientific knowledge would be incorporated, etc.

In all, though, one of the best legal theory books I've read. An exceptionally intelligent take on the nuanced, complicated gray areas of constitutional law and reproductive freedom.

[Kasia Hubbard · Rating 4 out of 5]

****FIRST AND FOREMOST - Goodreads has the old edition posted. This review is for the newly revised addition with the beige cover and ISBN 9781479823109 and the publication date of 01/17/2023****
This was an interesting read. The premise behind this book is to go back to 1973 when the original lawsuit came before the Supreme Court and they ruled on it, which had an impact that still ripples through to today. Jack has tasked eleven constitutional scholars to rewrite the opinions based on laws that existed from 1973 and before. What comes next is an interesting study into how impactful it is as to who is on the Supreme Court and how this major decision could have honestly changed based on how it was argued with laws that were already in existence. I think the response that really landed well with me is the one that kind of hit the Supreme Court with an idea that whatever law is put into effect, that the arm of the Supreme Court is not the final word on the whole of the situation, but an end to the one point that was made, that there are still other avenues to explore based on the laws of the land. I thought this was extremely well done and to be able to read views across the board was insightful. One thing I think I wish would have been added in this is a small blurb about the court cases used within these individuals arguments. Some are well known cases, Brown vs Board of Education, Plessy vs Ferguson, but I think I would have been better equipped if I had a very basic idea of what the other cases were without having to go to the internet, which I know would have added to the bulk of the book, but maybe that's why it wasn't included. I like Jack's approach and appreciate the individuals who participated as it gave me a better insight to the dynamic s of the case as a whole, and more respect of those who interpret and enact the laws of our country.
*I received a copy of this book from NetGalley. This review is my own opinion*

[Brian · Rating 4 out of 5]

Like one of the contributors to this book, I was initially a little skeptical of this anthology's premise. And as someone who isn't even a lawyer, I was worried it was going to be way over my head. While there were a few opinions written in a more lofty academic voice, most of these opinions were easy to read and follow.

I think this book's greatest strength is getting to learn how multiple constitutional scholars defended the right to an abortion. I noticed four main threads in the concurring opinions:

1) the right to privacy and medical choice
2) a fetus is not a person and therefore does not have the same protection as a person under the law
3) equality
4) liberty

In addition, there were two other compelling reasons that weren't necessarily grounded in legal precedent: the fact that making abortions illegal doesn't mean they will go away, and also history's pervasive misogyny in shaping anti-abortion laws.

The three dissenting opinions were interesting since they each objected for different reasons: either because states should repeal these anti-abortion laws, not the Supreme Court (Rosen); moral objections (Collett); or the fact that nowhere in the Constitution itself does it provide the right to an abortion (Paulson). It's this last one that worries me the most here in October 2021 as a very conservative-leaning Supreme Court will soon be listening to cases that directly oppose Roe v. Wade. This is not the first time in history Roe has been challenged, but it's hard not to feel like this is a markedly different occasion.

[Claire Haldeman]

useful but hard to rate. especially liked robin west’s opinion.

[Valerie · Rating 4 out of 5]

Really interesting legal thought experiment here. The concurring opinions were all very well argued, and two of the dissents were interesting failures. The third dissent was pure bullshit nonsense.

[Kasia Hubbard · Rating 5 out of 5]

This was an interesting read. The premise behind this book is to go back to 1973 when the original lawsuit came before the Supreme Court and they ruled on it, which had an impact that still ripples through to today. Jack has tasked eleven constitutional scholars to rewrite the opinions based on laws that existed from 1973 and before. What comes next is an interesting study into how impactful it is as to who is on the Supreme Court and how this major decision could have honestly changed based on how it was argued with laws that were already in existence. I think the response that really landed well with me is the one that kind of hit the Supreme Court with an idea that whatever law is put into effect, that the arm of the Supreme Court is not the final word on the whole of the situation, but an end to the one point that was made, that there are still other avenues to explore based on the laws of the land. I thought this was extremely well done and to be able to read views across the board was insightful. One thing I think I wish would have been added in this is a small blurb about the court cases used within these individuals arguments. Some are well known cases, Brown vs Board of Education, Plessy vs Ferguson, but I think I would have been better equipped if I had a very basic idea of what the other cases were without having to go to the internet, which I know would have added to the bulk of the book, but maybe that's why it wasn't included. I like Jack's approach and appreciate the individuals who participated as it gave me a better insight to the dynamic s of the case as a whole, and more respect of those who interpret and enact the laws of our country.
*I received a copy of this book from NetGalley. This review is my own opinion*

[LaShanda Chamberlain · Rating 4 out of 5]

Perhaps one of the most brilliant legal scholars in regards to women's rights, Ruth Bader Ginsburg often said Roe v Wade got it wrong with the use of the 14th amendment in its ruling. Bader Ginsburg was in favor of the Roe v Wade ultimate decision to give women the right to an abortion.. That being said, this book allowed constitutional scholars to offer their legal opinions as if they had decide the original Roe v Wade decision in 1973. I found this collection of legal opinions quire insightful particularly in light of the Dobbs' decision in 2022 that overturned Roe v Wade.

I receive this ARC copy of this book via Netgalley in exchange for my honest review.

[Kate · Rating 3 out of 5]

I learned a lot from reading all the fake opinions. I thought it was worth reading to get a sense of all the different ways one could concur or dissent. A better way to learn about the case would be to re-read Roe itself, Griswold, Casey etc., but this was still interesting.

[Jen · Rating 2 out of 5]

Interesting but I didn't get anything out of it.