When Roe v. Wade was decided in 1973, striking down abortion laws all over the country, even some supporters of abortion were embarrassed by the decision as a matter of constitutional law. John Hart Ely, for instance, wrote in the Yale Law Review: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." The decision, he said, "is not constitutional law and gives almost no sense of an obligation to try to be."
The federal government should not play any role in the abortion issue, according to the Constitution. Apart from waiting forever for Supreme Court justices who will rule in accordance with the Constitution, however, Americans who care about our fundamental law and/or are concerned about abortion do have some legislative recourse. Article III, Section 2, of the Constitution gives Congress the power to strip the federal courts, including the Supreme Court, of jurisdiction over broad categories of cases. In the wake of the 1857 Dred Scott decision, abolitionsts spoke of depriving the courts of jurisdiction in cases dealing with slaver. The courts were stripped of authority over Reconstruction policy in the late 1860s.
If the federal courts refuse to abide by the Constitution, the Congress should employ this constitutional remedy. By a simple majority, Congress could strip the federal courts of jurisdiction over abortion, thereby overturning the obviously unconstitutional Roe. At that point, the issue would revert to the states, where it constitutionally belongs, since no appeal to federal courts on the matter could be heard. (I have proposed exactly this in H.R. 300.)
