After the Supreme Court’s reversal of Roe v. Wade, the question of a constitutional right to abortion goes to state courts where there is a potential for resurgence of a Roe-like standard. This Essay thus evaluates whether Roe’s doctrinal framework is worth resurrecting, and concludes that it is good law to retain. It criticizes the work of liberal legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cited Ely’s criticisms, as if to suggest that Roe simply must be wrong, since even such a prominent liberal has found it lacking. This Essay disagrees, pointing out the biases and weaknesses in Ely’s analysis and Dobbs’ reliance on it.
B. Jessie Hill, Big, Bad Roe, 14 ConLawNOW 65 (2023)