In Furman v. Georgia (1972), the Supreme Court struck down the Georgia and Texas death penalty statutes, thereby calling into question the validity of every other state death penalty statute. In their concurring opinions, Justices Brennan and Marshall expressed the view that, given society’s gradual abandonment of the death penalty, capital punishment violated the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Justice Powell and three other justices dissented, arguing that the Court had misread the state of the law regarding society’s acceptance of the death penalty. Four years after Furman, in a quintet of cases, the Court held that the death penalty could be imposed under properly drafted statutes, upholding three of the challenged statutes and striking down the other two. Seven of the nine justices, in separate concurring and dissenting opinions in Gregg v. Georgia (1976) and Roberts v. Louisiana (1976), agreed that, in Furman, Justices Brennan and Marshall had misjudged America’s view of the death penalty. They noted that, since Furman, at least thirty-five States, as well as Congress, had enacted new statutes authorizing the death penalty. Those developments undercut the assumptions upon which the abolitionists’ argument rested and demonstrated that a large proportion of American society continued to regard the infliction of the death penalty as “an appropriate and necessary sanction.” This article argues that, just as Justices Brennan and Marshall misread the “signs of the times” regarding the death penalty in Furman, so, too, did the Supreme Court in Roe v. Wade (1973), when it effectively struck down the abortion statutes of all fifty States. Roe placed great weight on the facts that seventeen States had liberalized their abortion laws and that leading professional organizations favored the repeal or substantial revision of state abortion laws. Roe, however, ignored that fact that the other thirty-three States had not liberalized their statutes and that, in thirty-one of those States, bills to relax or eliminate restrictions on abortion were introduced, but never enacted. Of even greater significance is that, in the almost fifty years since Roe was decided, the overwhelming majority of state legislatures have rejected Roe and its refusal to recognize that unborn human life is worth of protection. States have passed resolutions calling for constitutional amendments to overturn Roe, retained pre-Roe laws prohibiting abortion, enacted post-Roe laws that would prohibit abortion upon the overruling of Roe, enacted a myriad of statutes that prohibit abortions before viability and extended the protection of the law to unborn children in a variety of areas outside the context of abortion, including criminal law, tort law and health care law. The article submits that, just as the Court had to revisit the issue of the constitutionality of the death penalty in light of society’s reaction to Furman, so, too, the Court should revisit the issue of abortion in light of the country’s massive repudiation of Roe.
Paul Benjamin Linton
Overruling Roe v. Wade: Lessons from the Death Penalty,
48 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol48/iss2/1