Roe, Wade and the American Dream
The Court [is] literally taking America back 150 years,”
proclaimed our President in response to the outcome of Dobbs v. Jackson Woman’s Health. The decision overturned the landmark cases of Roe v. Wade & Planned Parenthood of Southeastern Pa. v. Casey that conferred “wom[e]n [protection] from unduly burdensome interference [upon their] freedom to decide whether to terminate [their] pregnancy.”1 The President admonished the decision due to his support for universal access to abortion. However, the Supreme Court was not and should not be guided by the policies it regards as desirable but rather by the provisions of our Constitution. To thoroughly understand the decision, we must first discuss Roe itself.
A single pregnant woman (Roe) challenged the constitutionality of a Texas statute that prevented her from obtaining an abortion legally. The law was declared vague and over-broadly limiting to the plaintiffs’ Ninth and Fourteenth Amendment rights by a three-judge panel. The Supreme Court granted review on appeal and held that criminal abortion laws, like the Texas statute in question, violated the right of privacy contained in the Due Process Clause of the Fourteenth Amendment. It considered privacy broad enough to include a woman’s qualified right to terminate her pregnancy.
Justice Blackmun, writing for the majority, grounded the right in the Fourteenth Amendment but somehow also suggested it could be elsewhere. The majority opinion reads: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”2 This shaky judicial reasoning exemplifies the issues with Roe and provides the rationale for its overruling.
The issues with Roe are evident even to those who support its policy outcomes. The Court clearly knew this as it “did not declare an unqualified ‘constitutional right to an abortion[‘ in Roe]”3 as they had to recognize “[the state’s] legitimate interest in protecting the potentiality of human life”4. Even though it is conventional Constitutional doctrine that where reasonable people disagree (as they might in this case), the Government is free to adopt one position or another5, the Court decided to rule anyway. Justice White characterized Roe in his dissent as an imposition of the Court’s values and criteria upon peoples and legislatures throughout the nation.
The Court’s use of “raw judicial power”6 is problematic enough, but its liberal use of the Fourteenth Amendment was hazardous. The plurality opinion in Casey justifies this cavalier judicial doctrine by quoting justice Harlan, who wrote that “[liberty] is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”7 This definition is dangerous and useless because any proposed right could then be justified by the Constitution despite being clearly baseless (e.g., adult incest, polygamy, and suicide).
Understanding the Fourteenth Amendment so expansively is also inconsistent with Glucksberg, where the Court determined that for rights to be protected by it, they had to be: contained explicitly in the Constitution or, if implicit, “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”8 These limiting criteria are necessary to curb judicial authority; it is relevant to remember Justice Curtis’ warning that when a strict reading of the Constitution is disregarded then we become a government of men who determine the text to be whatever is convenient at the time9.
The majority in Roe provided no clear evidence that abortion was a right retained by the People and, therefore, protected under the Fourteenth Amendment. Despite a limited historical review that ranged from the irrelevant (abortions in antiquity) to the incorrect (that common law likely never prohibited abortion), the Supreme Court in Roe disregarded entirely the fact that abortion had been a legislative matter for the entire history of the U.S. and upended the laws in all 50 states.
