WHAT Roe v. Wade SHOULD HAVE SAID (Review); BY Dwight G. Duncan.(What Roe V. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision)(Book Review)

Edited by Professor Jack Balkin of Yale Law School, the book's subtitle is "The Nation's Top Legal Experts Rewrite America's Most Controversial Decision." Justice Blackmun's 7-2 majority opinion for the United States Supreme Court in Roe certainly qualifies as "America's most controversial," in part because of the sloppy way it was written and reasoned (this is the early Justice Blackmun).

The book is a successor to a previous volume edited by Balkin on "What Brown v. Board of Education Should Have Said." But there are significant differences between the two cases, as he acknowledges.

Rewriting the opinion of a unanimous 1954 decision, which a decade or so after it was written was widely accepted by the public (and is now firmly entrenched in constitutional law and political thought generally) is a markedly different project from trying to shore up the 1973 Roe v. Wade decision nearly 33 years after it was written when it remains more controversial than ever.

I suppose it is an interesting academic exercise, somewhat akin to rearranging the deck chairs on the Titanic. You can pretty up the deck, but the ship is still going down.

I can't help but wonder why anyone would want to write a volume which is the modern-day equivalent of "What Dred Scott v. Sanford Should Have Said."

In any case, Professor Balkin has assembled eleven law professors from around the country to write opinions in Roe and its companion case Doe v. Bolton, "using only materials available as of January 22, 1973" (p. x). Balkin acted as the book's "Chief Justice" and (as he describes it), "I have issued an opinion announcing the judgment of the Court, which strikes down the Texas and Georgia abortion statutes in Roe and Doe" (p. 18). There are seven concurring opinions (one of which concurs in Roe, but dissents in Doe), and three dissenting opinions.

Over the years, there have been other attempts to reconfigure Roe v. Wade. Ruth Bader Ginsburg, former ACLU attorney and current Supreme Court Justice, has opined that the equal protection clause's restrictions on sex discrimination would've been a better basis for the decision. Several of the contributors to this volume develop that line of argument, most notably Balkin himself, Reva B. Siegel, and Anita Allen. (A couple even attempt to use the never-ratified Equal Rights Amendment, which was pending in 1973, as part of their argumenta rather curious move.)