Book Review: What Roe v Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

What Roe v Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision. Edited by Jack M Balkin. Revised edition. New York, NY: New York University Press, 2023. xiv, 344 p. Includes bibliographical references, table of cases, and index. ISBN 9781479824489 (hardcover) US$89.00; ISBN 9781479823109 (softcover) US$23.95; ISBN 9781479824465 (eBook) US$23.95.

Reviewed by Lorissa Kinna
Reference Librarian
Great Library, Law Society of Ontario

This revised edition of What Roe v Wade Should Have Said could not have come at a more pertinent time. At the time of publishing in 2023, 50 years had passed since the original 1973 United States Supreme Court decision. This edition also came out shortly after the 2022 decision in Dobbs v Jackson Women’s Health Organization, which overturned Roe v Wade.

The first edition was published in 2005, although it was based on material originally written and delivered at a conference held at Yale Law School in 2003 to mark the 30th anniversary of the controversial decision. Balkin had asked top legal experts to form a fictitious U.S. Supreme Court and tasked them with rewriting the Roe v Wade decision only using material that was available in 1973.

The book has two parts. In Part I, Roe v Wade: An Engine of Controversy, Balkin discusses the history of Roe v Wade and its companion decision Doe v Bolton up to and including the immediate aftermath of its eventual overturning in 2022. If you, like me, are only familiar with the history of Roe v Wade on a surface level, Part I provides important context. Balkin covers the political climate of the late 1960s and early 1970s, which eventually gave birth to the Roe v Wade decision, and highlights how this decision was just the beginning of the legal struggle over reproductive rights. He also provides context for the years after Roe v Wade, including how even some of the most ardent supporters of abortion rights, like Ruth Bader Ginsberg, saw this decision as premature and a political mistake. He ends Part I by discussing problems with the Roe v Wade and Doe v Bolton decisions, which ultimately led to Roe v Wade being overturned by the Dobbs decision in 2022.

While Part I is new to this revised edition, the materials in Part II remain unchanged from their original publication in 2005. This part, Revised Opinions in Roe v Wade and Doe v Bolton, makes up the bulk of the text and includes the text of the fictional Supreme Court opinions, as well as comments from the contributors. There are seven supporters and four critics, which mimics the original 7–2 split of the 1973 Roe v Wade decision. Balkin starts off the opinions as Chief Justice, highlighting that the issues in the two cases were of women’s civil liberties and equality. Unlike the trimester framework of the original decision, Balkin suggests abortion should be available up to a certain period but does not give a hard time limit. The concurring opinions offer a variety of other reasons why the Texas and Georgia statutes are unconstitutional: equal citizenship, right of privacy, and decisional privacy, to name a few. Two justices concur in the Roe v Wade decision but have differing opinions on Doe v Bolton, which concerns a more recent Georgia statute.

Three opinions fully dissent from the judgment and range from mildly condemning to scathing in their tones. All agreed that the U.S. Constitution does not provide for a broad right to abortion. However, one expert believed that the Roe decision was rushed, given the political climate and discussions of the day and that, given time, the politics were likely to have changed. Another of the dissents was very severe, calling the Roe v Wade decision the “most horrible thing this Court has ever done in its history” (p. 242) and continues to name each one of the concurring justices as a man or woman of violence.

What Roe v Wade Should Have Said is a valuable text for those who want to learn more about the abortion debate in the United States. It not only covers the original Roe v Wade and Doe v Bolton decisions and the underlying Texas and Georgia statutes, it highlights the problematic portions of the decisions that gave rise to the polarization that the United States experiences today. While the opinions in this text rely only on documents available to the justices in the early 1970s, the contributors could not help but infuse their decisions with the knowledge gained over the next 30 years. This book is insightful and provides vital commentary and perspectives on an important ongoing debate.