“Roe v. Wade is… a very bad decision. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
—JOHN HART ELY, The Wages of Crying Wolf: A Comment on ROE v. WADE117
Abortion has been recognized as a constitutional right by the Supreme Court since the 1973 landmark case of Roe v. Wade. This decision declared that since people have a right to privacy, which the court found to be in the Constitution, a woman has the right to an abortion. Therefore, no state can pass laws, nor can the federal government, to restrict abortion at least before viability. Looking back, it seems absurd that they would highlight the ever-shifting “point of viability,” but the Supreme Court did so since it was widely considered to be crucial at the time. Nevertheless, the abortion right is protected today in the United States through the entire nine months of pregnancy. Roe v. Wade allowed for some state and federal regulation of abortion, but it is limited. Subsequent decisions interpreting Roe v. Wade further narrowed states’ ability to regulate abortion.
For those who aren’t familiar with the Constitution, it may seem that the document must somewhere mention abortion as a right. But it doesn’t. It may also seem that the Constitution invokes some kind of generalized right to privacy that the Supreme Court was able to point to and say, “Here, here is the right to privacy. Privacy is so sacrosanct that it can’t be invaded in this case or any other case.” But, of course, there’s no generalized right to privacy in the Constitution either.
When the Constitution does speak of privacy, it refers to it in particular cases, most notably, unreasonable search and seizure. This means that if you’re in your house or you’re driving in your car, absent probable cause, the police can’t search your house or car without your consent. Why? Because your privacy can’t be arbitrarily invaded by the government. But what resemblance does this narrowly specified right to privacy have to an issue like abortion, which does not merely involve the mother but also a father, their unborn child, and her doctor? Clearly the cases are not identical. If the parallel were to work and “right to privacy” were invoked, a woman would have the right to not have her body searched without probable cause. I think that is a fair parallel, and no woman should be subjected to that.
Supreme Court Justice William Rehnquist, who sat on the Court at the time of Roe v. Wade, wrote in his dissent that “an operation such as this is not ‘private’” and that the right to an abortion is not “even a distant relative” to the justification the Court used, i.e. unreasonable search and seizure, mentioned in the Fourth Amendment.118
The Supreme Court went looking elsewhere to find the right to privacy. In its decisions, what the Supreme Court argued, rather strangely, was that the specified right against unreasonable search and seizure, together with other general statements about equal protection of the laws and due process, generate what the court called a penumbra—a kind of emanation or radiation above and beyond what is explicitly said. And supposedly this penumbra protected rights that go beyond the rights actually enumerated in the Constitution.
What we’re dealing with here is what the pro-choice side and the Left more generally call “the living constitution.” The idea here is that the Constitution itself may be a static document, written by men many years ago, but it can’t be interpreted in a static way. Courts are at liberty to use a certain amount of interpretive elasticity to bring the Constitution into line with modern attitudes and modern developments. The Constitution is almost like a living being that grows in accordance with the changing values of the culture. Paul Gewirtz, a professor at Yale Law, agrees with this notion, saying, “The practical content of constitutional principles has surely not been fixed over time but rather has changed as the world changes and the country’s moral understandings change.”119
First of all, no one argues that the Constitution is a purely fixed, static document. The Founders adroitly allowed for a process of change and growth for the Constitution and expected it to occur throughout the nation’s future. This process, as you know, is called an “amendment,” which can be approved as specified in the Constitution. The passing of an amendment would then presumably change the Constitution to match present-day cultural values. The Founders figured that if values had really changed, then a two-thirds majority would agree on an amendment. If people, through their elected representatives, want the Constitution to be different than it is, they can make it so.
Everyone knows that a two-thirds majority is difficult to get politically, especially on hot-button issues. But this was precisely the intention of the Founders. The Constitution shouldn’t be amended every time one side wants something passed for partisan goals because the Constitution is a kind of super law. In a sense, the Constitution overrides the decisions of democratic majorities. It overrides the decisions of states passed through elected state representatives. So to have this kind of super law, the Founders believed there need to be supermajorities of people in the country who want to change the Constitution in this way, who want to make, if you will, a different kind of super law.
This two-thirds majority to amend the Constitution has never been reached regarding abortion. So what you have here in the Roe v. Wade decision is judicial usurpation. The justices used the technique or device of interpretation to insert into the Constitution things that it doesn’t have and doesn’t say. Laurence Tribe, a professor at Harvard Law and a pro-choicer, admits, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”120 Pick up a copy of the Constitution. It’s not a very thick document. If you hold it up to the light, turn it upside down, squeeze lemon juice on it, doesn’t matter, you won’t find either a specified right to abortion or even the generalized right to privacy that is so often claimed to be in the Constitution.
Let’s think hypothetically about the idea of a right to privacy. Are we allowed to do anything in the privacy of our own home? We are allowed to do a lot of things, yes, but a few things are off limits. We can’t hurt other people, for example. If you are starving your child in your house, protective services will take your child away. If you are abusing your wife, beating her to a pulp, that is not allowed either. Even if there were a “right to privacy,” it wouldn’t, and shouldn’t, justify people killing other people in the privacy of their own home. There is no moral or legal difference, in the sight of the law, between killing in private and killing in public. So why would the right to privacy be invoked here? Because the Supreme Court wanted to reach a certain end result, namely, siding with the right to an abortion rather than a right to life.
Many think that leading up to Roe v. Wade there was a grand, larger movement of pro-abortion legislation sweeping the nation. This was not the case and is merely a lie the Left likes to sell in order to justify Roe v. Wade. The reality is that the majority of states had pro-life laws and voted to keep them that way. In 1971, just before Roe v. Wade, in all twenty-five states that considered legalizing abortion, pro-life legislation prevailed and pro-abortion laws were defeated. In 1972, when Michigan and North Dakota considered on legalizing abortion, both states voted against it in wide margins. Only four liberal states had allowed abortion on demand prior to Roe v. Wade.121
Roe v. Wade ultimately overturned the laws of all the states that had regulated abortion. And amazingly, the Supreme Court overturned not only the conservative laws prohibiting or severely regulating abortion but also the majority of liberal laws that imposed some, often very minor, constraints on abortion and replaced them with the kind of fiat or decision that in effect said there would be virtually no restriction on abortion. Abortion was now sanctified as a constitutional right placed, you might say, above the reach of the many laws states had passed.
Judge and legal scholar Robert Bork had this to say about Roe v. Wade: “When the Court, without warrant in the Constitution, strikes down democratically produced statute, that act substitutes the will of the majority of nine lawyers for the will of the people.… Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned. The Court’s integrity requires that.”122
When the Constitution protects an enumerated right, say freedom of speech, it then follows that if states or the federal government pass laws restricting speech, those can be struck down on constitutional grounds. But notice that in this case, laws are struck down that regulate a practice that is nowhere mentioned in the Constitution in the name of a right that itself does not exist in the broad, generalized way that it needs to exist for the court to correctly interpret it that way. And when the courts strike down those laws based on this whimsical and arbitrary basis, the net effect is that you the American people do not have the democratic right in your communities, in your localities, in your states, to have laws that reflect the norms of the community in which you live. Even Justice Ruth Bader Ginsburg, who is avidly pro-choice, concedes that Roe used “heavy-handed judicial intervention” that was “difficult to justify.”123
Justice Harry Blackmun, author of the Roe v. Wade opinion, famously wrote, “We need not resolve the difficult question of when life begins.”124 If this is true and they did not intend to resolve the “difficult” question of when life begins, why did the court do just that? They decided. And they set a supreme law over the land. If they did not know when life begins, why did they not defer the decision to legislatures? Why did the court choose to prohibit states from voting on this very important issue that has moral weight for many Americans? Michael McConnell, a justice on the United States Court of Appeals for the Tenth Circuit from 2002 to 2009, writes of the court that decided Roe, “Worse yet, it was suggesting that the question of human life was irrelevant to the decision.”125
Not only did the Supreme Court allow nine men to take away from the American people, male and female, the right to make laws, to have democratic control over their own lives on an issue so fundamental as who gets to be a human being, who gets to be allowed into the community, who gets a chance to be born and to live at all, the court also issued a death sentence to millions of children. Roe v. Wade was so radically pro-abortion in allowing abortion to the point of birth that it put the United States on par with only a few countries, namely China and North Korea, when it comes to our radical abortion laws.126
Roe v. Wade is today sometimes called settled precedent, and it certainly has been around for more than fifty years. Settled precedent is supposed to deserve respect because it is perceived to be anchored in the Constitution and then supported by the practices and customs that have now grown around it and have become part of the body politic.
The reality is that this so-called settled precedent, Roe v. Wade, is ultimately based on straw. It is based on constitutional fabrication and reasoning from justices who wanted to bring about a certain outcome. It is a perversion of law, a perversion of true constitutionalism, and ultimately a perversion of the democratic process for them to have done this, leading to the loss of so many lives since 1973, approximately sixty-one million and counting.
Justice Byron White, who sat on the Supreme Court at the time and voted against Roe v. Wade, wrote in his dissent, “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions a new constitutional right.”127 He pointedly called this decision “an exercise of raw judicial power.”128
More recently, Alan Dershowitz, lawyer and professor at Harvard Law, in an interview with Business Insider said, “I support a woman’s right to choose, I always have.”129 Yet even he recognizes that “Roe v. Wade was a disaster” and argues that it was not constitutional.
Ultimately, Roe v. Wade will go down in history as one of the most constitutionally baseless and wicked decisions of the Supreme Court, one comparable to the Plessy v. Ferguson decision that enshrined segregation or the Dred Scott v. Sanford decision, which ultimately said that black people have no rights that whites are to respect. These decisions were overturned and tossed onto the ash heap of history. This should be the fate of Roe v. Wade. And the sooner the better.