In a Wednesday Letter, University of Maryland School of Law Professor Robert Percival wrote in defense of Supreme Court Justice Elena Kagan’s move to politicize the Supreme Court—a move which he denies.

But what drew my attention was this statement regarding Roe v Wade and his concept of constitutional rights:

Justice White opposed creating new constitutional rights, but he didn’t think the court should take back rights once they were well-established.

What Percival has chosen to ignore here is the distinction between “well-established” and “long extant.”

The decision of Roe lasted a long time, but the equally long fight against abortion at various stages of pregnancy, in parallel with the equally long fight to reverse Roe, demonstrates that the “constitutional right” was not at all well established.