Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/50

50 All in all, Roe's reasoning was exceedingly weak, and academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism. John Hart Ely famously wrote that Roe was "not constitutional law and g[ave] almost no sense of an obligation to try to be." Ely 947. Archibald Cox, who served as Solicitor General under President Kennedy, commented that Roe "read[s] like a set of hospital rules and regulations" that "[n]either historian, layman, nor lawyer will be persuaded … are part of … the Constitution." Archibald Cox, The Role of the Supreme Court in American Government 113–114 (1976). Laurence Tribe wrote 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." Tribe 5. Mark Tushnet termed Roe a "totally unreasoned judicial opinion." M. Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law 54 (1988). See also P. Bobbitt, Constitutional Fate 157 (1982); A. Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 110 (2000).

Despite Roe's weaknesses, its reach was steadily extended in the years that followed. The Court struck down laws requiring that second-trimester abortions be performed only in hospitals, Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 433–439 (1983); that minors obtain parental consent, Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74 (1976); that women give written consent after being informed of the status of the developing prenatal life and the risks of abortion, Akron, 462 U. S., at 442–445; that women wait twenty-four hours for an abortion, id., at 449-451; that a physician determine viability in a particular manner, Colautti, 439 U. S., at 390–397; that a physician performing a post-viability abortion use the technique most likely to preserve the life of the fetus, id., at 397–401; and that fetal remains be