Scholars typically are pleased when the Supreme Court cites them in a landmark opinion. Not Laurence Tribe, professor emeritus at Harvard Law School, whose 1973 critique of Roe v. Wade features prominently in Justice Samuel Alito’s Friday opinion overruling precedents that recognized women’s constitutional right to an abortion.
Justice Alito quotes Mr. Tribe as writing that “even if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, ‘interest-balancing’ of the form the Court pursues fails to justify any of the lines actually drawn.”
That and other references to Mr. Tribe could suggest “that something I said was supportive of Alito’s conclusion that Roe was ‘egregiously wrong,’” the professor said Saturday. “On the contrary, I was defending it as eminently right.”
Mr. Tribe was one of several liberal scholars who criticize Justice Harry Blackmun’s Roe opinion for failing to adequately justify some of its conclusions, particularly in setting fetal viability as the point where power over pregnancy shifts from the woman to the state.
But Mr. Tribe’s 53-page 1973 Harvard Law Review article agreed that the Constitution does protect women’s right to early abortions, and went on to argue for a broader doctrine to clarify which kinds of decisions should be left to the individual rather than the state.
Like the “political question” doctrine that directs certain decisions to the elected branches, Mr. Tribe wrote, the court could recognize a “personal question” doctrine reflecting that “some types of choices ought to be remanded, on principle, to private decision makers unchecked by substantive governmental control.”
Mr. Tribe said he suspected the conservative Justice Alito was being puckish in citing prominent liberal scholars—Friday’s opinion mentions a few others as well—in a decision rescinding the right to an abortion they support.
“Perhaps it gives him a kick to say something that might embarrass me,” Mr. Tribe said, or at least that helps discredit Justice Blackmun’s highly disputed Roe opinion.
Mr. Tribe said he opposes Friday’s decision in Dobbs v. Jackson Women’s Health Organization and supports the Roe opinion it overturned.
“The fact that hundreds of people have come up with better ways of explaining the obvious conclusion that women own their own bodies cannot undermine the correctness of the original decision,” he said.
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