DOES JUDGE Robert Bork think abortion is wrong and should be prohibited? We don't know. The argument about his position on Roe v. Wade does not concern his personal view on this. Judges and legislators routinely distinguish between their beliefs about abortion and their public obligation to make decisions concerning the availability and legality of abortion. Justice Brennan, for example, is opposed to abortion, but voted with the majority in Roe to legalize it. Judge Bork, for all we know, may have no moral objections to abortion, yet he believes that the Supreme Court decision is fundamentally wrong because questions of this kind should be decided by legislatures. This is a familiar point of view, one that has, in fact, been espoused by liberals in the past, and it does not automatically locate Judge Bork on the right-wing political fringe. Many eminent jurists such as Oliver Wendell Holmes, Felix Frankfurter and Hugo Black have argued for judicial restraint in overturning legislative decisions, and some modern constitutional scholars including John Hart Ely and Archibald Cox have specifically criticized the Supreme Court's reasoning in Roe v. Wade.
The abortion decision is grounded on the finding that there is a constitutionally protected right of privacy that supersedes laws enacted by any state or federal legislature. That right is not specifically mentioned in the Constitution but was inferred by the court as necessary in order to guarantee other rights, such as liberty, that are specifically mentioned. The business of inferring rights cuts both ways, however. In the early years of the century, a much more conservative Supreme Court inferred economic rights in the Constitution, and, citing these rights, struck down hundreds of state statutes -- minimum-wage and child-labor laws, for example -- that interfered with the economic liberty of businessmen. It was only after 1937, with the appointment of the Roosevelt justices, that this view was rejected and the great social and economic statutes of the New Deal era were allowed to stand.
Justice Hugo Black, a Roosevelt appointee and liberal stalwart, believed strongly in this kind of judicial restraint even when he believed a legislature had been wrong. In Griswold v. Connecticut, a case invalidating that state's law against the sale of contraceptives, he wrote in dissent: ". . . the law is every bit as offensive to me as it is to my Brethren of the majority," but ". . . there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great, unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country."
Many reputable judges and lawyers hold this view, as does Judge Bork. That philosophy and the lengths to which Judge Bork would carry it -- not the morality of making abortion available -- is what the argument is about.