U.S. Senator Josh Hawley Launches Deserved Attack Against Roe v. Wade

Written by Laurie Higgins

On Sunday, in an interview with the Washington Post, Senator Josh Hawley (R-MO) took a dagger to the heart of Roe v. Wade like abortionists take a needle to the hearts of babies floating in their mothers’ wombs. Hawley made this statement about the infamous Supreme Court decision—a statement that has sent shock waves into the fetid, swampy “progressive” pond in which pro-feticide cheerleaders ferociously swim:

I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated. I don’t want private assurances from candidates. I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predications. I don’t want any of that. I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.

No mealy-mouthed, under-their-breath, or behind-the-scenes assurances from potential nominees or their representatives who don’t care about the fate or rights of humans in wombs for Hawley. No siree. Hawley will settle for nothing less than a forthright and public acknowledgment that Roe v. Wade was wrongly decided.

In his interview, Hawley rightly characterized the arrogant nature of Roe v. Wade:

Roe is central to judicial philosophy. Roe is and was an unbridled act of judicial imperialism. It marks the point the modern Supreme Court said, ‘You know, we don’t have to follow the Constitution. We won’t even pretend to try.’

Chicago attorney Joseph A. Morris, chairman of The Heartland Institute Board of Directors, President and General Counsel of The Lincoln Legal Foundation, and former Assistant Attorney General of the United States under President Ronald Reagan, speaks for many conservatives when he describes Hawley’s bold statement:

For Senator Hawley to say that “Roe was an unbridled act of judicial imperialism,” now that is speaking truth to power. One has to admire that kind of chutzpah.

Conservatives do, indeed, admire Sen. Hawley’s chutzpah, as well as his wisdom and intelligence.

Mr. Morris also offers a delightfully piquant and pointed assessment of what Hawley’s gauntlet toss means:

For a generation and more the panjandrums of the left have been trying to drill it into the heads of conservative girls and boys in the law schools that, if you ever hope to be a judge, you must never express an opinion on the merits of court decisions that anchor the left’s efforts to remake the Constitution by deconstructing it. You must bow to the myth that stare decisis is Latin for “ratchet left.”

But smart and principled girls and boys have been expressing their strong and independent minds right along as they have grown from law students to fine young and even fine old lawyers. There is no shortage of lawyers and legal scholars who are on record as identifying and dissecting the errors in Roe v. Wade and scores of other really bad Supreme Court decisions.

So, Senator Hawley’s statement presents no barrier to a multitude of brilliant, principled, rigorously-thoughtful, and articulate current and future candidates for the bench. It is a challenge, however, to the courage and commitment to the Constitution of future presidents who will be called on to nominate them.

Methinks we have just such a president right now.

Hawley’s just and wise position is informed by his commitment to the interrelated judicial philosophies of textualism and originalism—philosophies that Hawley saw abandoned by Republican-nominated Justices John Roberts and Neil Gorsuch in the recent case Bostock v. Clayton County in which six Justices, in effect, rewrote Title VII of the Civil Rights Act of 1964. The majority absurdly concluded that the word “sex” necessarily includes “sexual orientation” and “gender identity”—both subjectively constituted conditions—thereby exceeding their proper authority by rewriting law.

Following Bostock, Hawley condemned the abandonment of textualism and originalism in a bold and fiery must-see speech on the Senate floor that included this indictment:

[T]his Bostock case and the majority who wrote it, it represents the end of something. It represents the end of the conservative legal movement or the conservative legal project as we know it. After Bostock, that effort as we know it, as it has existed up to now, it’s over. And I say this because if textualism and originalism gives you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all.

Before any weird, fringy, leftwing pro-human slaughter disciples start screeching that Hawley’s position is a weird, fringy, rightwing position, here are what “progressives” have said over the years about Roe v. Wade:

• “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” (Laurence Tribe, Harvard Law School professor).

• “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose” (Edward Lazarus, former clerk to SCOTUS Justice Harry Blackmun).

• “[A]s a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum—will tell you it is basically indefensible” (Edward Lazarus).

• “Blackmun’s [U.S. Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference” (William Saletan, Slate magazine writer).

• Roe “is not constitutional law and gives almost no sense of an obligation to try to be…. What is frightening about Roe is that this super-protected right is not inferable from the language of the U.S. Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” (John Hart Ely, clerk for U.S. Supreme Court Chief Justice Earl Warren).

• “[T]he very basis of the Roe v. Wade decision—the one that grounds abortion rights in the Constitution—strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy. … “[Roe] is a Supreme Court decision whose reasoning has not held up. It seems more fiat than argument. … Still, a bad decision is a bad decision. If the best we can say for it is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well” (Richard Cohen, Washington Post columnist).

• “Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy) …. [C]lear governing constitutional principles… are not present” (Alan Dershowitz, former Harvard Law School professor).

• “In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. … Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it” (Jeffrey Rosen, George Washington University Law School professor, former clerk to Judge Abner Mikva).

• “Liberal judicial activism peaked with Roe v. Wade, the 1973 abortion decision…. Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching” (Michael Kinsley, attorney, political journalist).

• “[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor. … who will embrace the opinion itself rather than the result. … As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.” (Kermit Roosevelt, University of Pennsylvania Law School professor).

• “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations…. Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution” (Archibald Cox, JFK’s Solicitor General, former Harvard Law School professor).

It shouldn’t be politically, morally, or philosophically difficult for a Republican-nominated SCOTUS nominee to acknowledge what leftist legal scholars have long acknowledged. And it shouldn’t send leftists into paroxysms of outrage to hear that a Republican senator expects a nominee to have acknowledged publicly what leftist scholars have acknowledged publicly.

As many conservatives have learned the hard way, SCOTUS nominations by Republican presidents can be deeply disappointing. As a consequence, conservatives serving in the Senate must do a better job of ferreting out those who may lean toward renegade judicial activism in order to prevent the appointment of political strategists like Chief Justice Roberts who subordinates intellectual, philosophical, and moral truth and consistency to base political concerns like forging a desired historical legacy or extraconstitutional concerns like constructing ideologically balanced judicial outcomes. We need Justices who are more committed to textualism than they are to stare decisis (i.e., judicial precedents). And we need more Justices and elected leaders like Sen. Hawley who remains steadfastly and unashamedly committed to truth.

Listen to this article read by Laurie: