David J Garrow wrote a detailed history of sexual liberty, a sort of "Griswold and Beyond," one of the seminal works on the subject. So, his comments on a project by Prof. Balkin respecting "What Roe v. Wade Should Have Said" (eleven law professors re-write the opinion, patterned on a similar book on Brown v. Bd. of Ed., also worthwhile) are both relevant and interesting.
Though he respects Balkin's "opinion of the court," overall he gives short shrift to the various opinions in the book, basically seeing them as "same old, same old," except the expressly pro-life ones (he notes the judicial restraint / anti-Roe opinion is of some interest, but fails to note -- by the writer's own words -- it is John Hart Ely Jr. boilerplate ... so also not news). One of the pro-life opinions (a last minute job, so having a rushed feel) is a sorta pro-life feminist approach: or rather, one that suggests abortion is anti-woman. [Dubiously.]
In fact, she was no big fan of allowing unmarried individuals to use contraceptives either -- such individualism leads to bad results. The opinion is therefore a bit of an outlier. The second one takes the "abortion is murder" approach, even calling the pro-choice "justices" accessories of murder, but must accept that the Constitution as such does not compel this approach. Garrow thus wonders about his tone, rightly, even given some criticism to such criticism. [To respond: few don't support shooting to stop violence in Rwanda, especially, if your family is about to be shot ... few do support murdering abortion doctors.] [Anyway, criminalization is not really "pro-life" anyway.]
I think Garrow should have given a bit more coverage to some of the interesting "concurring opinions" found in the book. Clearly, he does not take the "fantasical" approach of pretending one was on the Court at the time too seriously, but it is an interesting exercise. OTOH, he was right to criticize the writers for not getting some important background right: abortion was not really on the quick road to being liberalized in the early 1970s (even the liberal NY law was only saved by Gov. Nelson Rockefeller's veto of a repeal move) and what about the Vuitch opinion? [The opinion dealt with a D.C. law that secured abortions to protect the "health" of the woman.] And, an important lower court opinion that influenced at least three justices (Blackmun, Powell, and Stewart) -- as shown by his own writings as well as The Brethren -- dealing with viability was ignored.*
Meanwhile ... I read the South African opinion overturning the right of the state to only supply the benefit of marriage to heterosexuals. It is chock full with good stuff. For instance, it has a section discussing the importance of religious freedom to liberty and individual dignity, but also that this does not mean that the state has a right to pick among religious beliefs in part to "respect" believers. Also, it has a good rule of equity to follow when courts hand down judgments -- not just the right law, but a just result. I immediately thought about Bush v. Gore with it's nice words voting equality along with its patently unjust anti-equality result. And, to list but one more aspect, the opinion underlined that the legislature also was an important party (sometimes the most important) in enforcing constitutional rights.
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* Likewise, Garrow notes that the justices just did not think Roe was that profound, though a few did realize it was bound to lead to some negative feedback. For instance, a rump panel of justices went through pending cases to determine what ones could be easily dealt with by seven justices (Black/Harlan recently retiring ... and soon dying), and Roe was among them. And, Roe was no rush to judgment, at least respecting the issue itself: many lower court rulings dealt with the topic, in fact, there was some dispute among the circuits. The problem (arguably) was the breadth, not the ruling itself.