The politically unsettled and judicially confused law of abortion in 1971 and 1972, when the Court twice heard arguments and deliberated Roe, should have warned it not to decide the case. By doing so; the Court thrust itself into a political debate and stunted the development of a thoughtful lower-court case law. If the Court did perceive the warnings but continued toward a decision anyway, perhaps trusting that its own considerable wits would devise an answer the lower courts had not, the result suggests that the judicial system's axioms deserve more respect than they received. This Article, by showing briefly in Section I that the Court should not have decided an abortion case when it did, and by showing at more length in Section II that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision, argues that Roe was almost destined to be a bad opinion.
Richard G. Morgan,
Roe v. Wade and the Lesson of the Pre-Roe Case Law,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol77/iss7/4