Over the past couple of weeks, the issue of abortion has been discussed widely due to Texas’s passage of a heartbeat bill and the Supreme Court’s decision to grant review in Dobbs v. Jackson Women’s Health Organization—a case concerning a Mississippi law that bans abortion after the 15th week of pregnancy.
Consequently, the Court’s infamous ruling in Roe v Wade has been talked about a lot recently. From these conversations, it is clear that few people understand what the Court’s holding in Roe actually means or why scholars consider it bad constitutional law as even progressives like the late Justice Ginsburg called it “heavy-handed judicial activism.”
What is Roe v Wade?
In this 1973 case, a Texas woman named Norma McCorvey sought an abortion and was refused because her doctor cited an 1857 Texas law that made the procedure illegal except to save the life of the mother. She filed suit under the pseudonym “Jane Roe” and her appeal reached the Supreme Court where she won in a 7-2 decision.
Writing for the Court, Justice Harry Blackmun held that a woman’s “right to choose” falls under the right to privacy, which he thinks can be inferred through the due process clause of the Fourteenth Amendment. However, he also held that the state has a compelling interest in limiting abortion to protect the health of the woman and the potentiality of fetal life.
Ultimately, Blackmun’s majority opinion was a confused and internally inconsistent series of arguments that satisfied no one because the issue of abortion is even more divisive today. The “trimester test” he created has since been rendered obsolete both legally and scientifically as the Court now uses the “undue burden” standard from Planned Parenthood v Casey.
What happens if Roe is overturned?
Before Roe, decisions on the legality of abortion were left up to state legislatures. According to the Tenth Amendment Center, in 1973, “Thirty states prohibited abortion without exception; sixteen states banned abortion [with exceptions], and four states allowed abortions in nearly all cases before the fetus was viable.”
Overturning Roe would not outlaw abortion but would simply return the matter to the states. Pro-lifers who want to outlaw abortion should recognize that overturning Roe is only the first step to banning the practice as a constitutional amendment is likely necessary.
Why was Roe a bad legal decision?
To understand Roe, one first must understand the original right to privacy case of Griswold v Connecticut. In this 1965 case, Justice William Douglas held that a right to privacy could be inferred from the Bill of Rights through a combination of the Fourth, First, Ninth, Third, and Fourteenth Amendments. He suggests that certain guarantees of the Bill of Rights have emanations from precedent that cast penumbras under which the right to privacy can be found.
Essentially, he sees the Constitution and Bill of Rights as a tree trunk. From this tree trunk, Douglas says that past court decisions grow out like branches (emanations) that cast shadows (penumbras) and that it is in these shadows that new rights can be discovered.
This is utter nonsense. The federalist writer, Publius, anti-federalist writer, Brutus, and the great Chief Justice John Marshall all agreed that the Constitution was the supreme, fundamental, and paramount black-letter law of the land. They believed that judges were to discover the law by analyzing the original intent of the framers rather than by interpreting the Constitution according to its “spirit.”
Some might argue that Justice Douglas found the spirit of the law in his Griswold opinion; nevertheless, as Justice Hugo Black writes in his dissent, Douglas effectively substituted his will for the Constitution.
There is no right to privacy in the text! Justice Black abhorred the majority’s judicial legislation in Griswold and attacked his fellow Justices for turning the Court—the least Democratic branch of government—into “a day-to-day constitutional convention.”
By judicially legislating a right to privacy in Griswold and applying this right to abortion in Roe, the Court usurped from state legislatures the power to address the political issues of the day. Though some might consider the rulings in Griswold or Roe fair or just policy, these cases should have been deemed beyond the Court’s purview to address because they are not mentioned in the Constitution.
As Justices Byron White and William Rehnquist write in their Roe dissent, “the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”
Ultimately, by reading the rights to privacy and abortion into the Fourteenth Amendment rather than leaving policy issue decisions to state legislatures, the Court engaged in judicial activism and effectively degraded the value of constitutional text by circumventing its words for their will.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.