It’s high time for the Supreme Court to overturn Roe
Erin Hawley | But let’s remember how we got it in the first place
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The Supreme Court may finally be poised to overrule Roe v. Wade—its worst standing decision. The Roe Court’s blessing of a constitutional right to elective abortion up until a baby can survive outside her mother’s womb finds no basis in constitutional text, structure, or original understanding. Roe v. Wade is as lawless as it is immoral. It is also supremely anti-democratic.
To understand why, one must look at the origin of our constitutional rights. Some of them are easily identified in the Constitution’s text. The right to a jury of one’s peers, the right to freely exercise one’s religion, the right to carry a weapon for purposes of self-defense—those rights are all clearly enumerated in the Bill of Rights.
And then there’s the Due Process Clause of the Fourteenth Amendment, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.” When it was adopted, the Due Process Clause was interpreted according to its text, to require certain processes: an impartial tribunal, notice, and an opportunity to be heard. Yet, the early 20th century saw the Supreme Court expand due process to include unenumerated rights—rights nowhere mentioned in the Constitution or imaginable to the Founders. Using so-called “substantive due process”—a doctrine as illogical as its name—the Court exercised unilateral power to create constitutional rights.
In days past, when the Supreme Court was dominated by progressives and was less tethered to text and history, the federal courts routinely invented rights. This was the day of Roe. That case infamously extrapolated the right to an abortion from the “emanations and penumbras” of a collection of other rights. In doing so, the Court struck down democratically enacted pro-life laws in nearly every state. It removed from the democratic process an issue on which the Constitution is entirely silent and took away from “We the People” the ability to protect unborn life. Indeed, Justice Byron White (a Democratic nominee) dissented, describing the case as a constitutionally groundless and “extravagant” and an “exercise of raw judicial power.”
In Planned Parenthood of Southeastern Pa. v. Casey, the Supreme Court seemed ready to overrule Roe. But at the last minute, Justice Anthony Kennedy changed his mind. With lofty, philosophic rhetoric, he penned an opinion upholding the right to an abortion as a liberty interest protected by the Fourteenth Amendment: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The Constitution, of course, says nothing about such new-age sounding subjectivism. Further, even if the Constitution did guarantee the right to define one’s own concept of existence (it does not), that would not authorize the destruction of another life.
Indeed, the Supreme Court has clarified that the Fourteenth Amendment is not a source for endlessly invented rights. As the Supreme Court explained in rejecting a right to die in Washington v. Glucksburg, the Due Process Clause elevates constitutional protection only for fundamental rights—those that are “objectively, deeply rooted in [our] Nation’s history and tradition.” And for good reason: unless substantive due process has some grounding in constitutional text or history—the Constitution is merely what a majority of justices on the Supreme Court say it is.
Abortion is not such a right. It is not deeply rooted in our nation’s history and tradition. Rather, when the Fourteenth Amendment was ratified in 1868, the vast majority of states restricted abortion. Roe was based on specious claims and has produced a deadly result.
When it comes down to it, virtually no constitutional scholar thinks Roe was rightly decided. The decision even spawned a book written by top law professors trying to redeem the decision, entitled “What Roe v. Wade Should Have Said.” Even liberal law professors understand the problems with the decision and the Court’s logic. Harvard’s Professor Lawrence Tribe has explained that “nothing in the Supreme Court’s opinion [in Roe] provides a satisfactory explanation” for why a state may not protect unborn life before viability.
Even the late Justice Ruth Bader Ginsburg thought Roe was too extreme. She called the decision “breathtaking” and “difficult to justify,” criticized it as an “extreme model” of court intervention, and faulted the Court for improperly removing the issue from the democratic arena.
But the preservation of Roe is a sacred cause to the pro-abortion movement and to the world of liberal lawyers, law professors, and judges.
Nearly 50 years under such a poorly reasoned decision is enough. It is time the Supreme Court owns its mistake in inventing a constitutional right to an abortion from its imagination. It is high time to reverse Roe v. Wade.
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