Confusion Regarding Roe v. Wade

While I don't generally agree with Cokie and Steve Roberts' opinions as outlined in their regular column, I have in the past found their commentary to be interesting, and occasionally insightful. That makes their recent column (link will come when I can find it online) all the more incredible to me. In the title and in the final paragraphs of their column, the Roberts' seem to be making a breathtakingly uninformed assertion: that overturning the Roe vs. Wade decision that prevented state and local governments from making abortion illegal could be accurately described as "legislating from the bench".

Overturning Roe vs. Wade would not, in and of itself, make abortion illegal. The effect of that 1973 decision was to prevent the Federal and state legislatures from passing laws that outlawed or restricted abortions. Overturning it would simply return to the state legislatures (and the people they represent) the authority to determine the legality of abortions in their jurisdiction. It would not be even remotely equivalent to the Supreme Court decreeing that abortion must be illegal (which WOULD be "legislating from the bench"). I find it hard to believe that the Roberts' are actually unaware of this fact, but multiple re-readings of their column seem to leave no other interpretation.

The Roberts' admit in their column that "flawed legal reasoning" was used to create the right to legal abortions. How correcting that admitted mistake made by the Supreme Court over 30 years ago and returning to the legislatures a power that the Constitution always intended them to have could be considered "legislating from the bench", I truly have no idea. The Roberts' also imply that today's America does not support making abortion illegal. If that's really the case, then they would have nothing to fear from a reversal, as no state legislature would vote to restrict abortion over the objections of its constituency.

I believe it bears repeating that overturning Roe vs. Wade today would NOT make abortion illegal. It would simply make the Supreme Court mute on the legality of abortion, as they are Constitutionally required to be. No thoughtful person could characterize that as "legislating from the bench". Inaccurate information like that promulgated in the Roberts' column does the country a great disservice, by confusing the situation and preventing a clear debate on the subject.