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Why Roe v. Wade was an indefensible ruling

And why the Constitution leaves the question of abortion to the states

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July 15, 2022

Pro-life Christians have long understood that the Roe v. Wade decision—which institutionalized abortion on demand in all 50 states—was a moral travesty. But what has often been less clear for us is why it was considered unjustifiable as a matter of constitutional law.

A broad range of conservative and liberal legal scholars have been in agreement that the Roe decision was, as Mark V Tushnet termed Roe a “totally unreasoned judicial opinion.” A prime example of the problem was explained by Edward Lazarus, a former clerk of Justice Harry Blackmun, the author of Roe’s majority opinion. Although Lazarus supports a right to abortion, he writes that, “as a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” 

“What, exactly, is the problem with Roe?” asks Lazarus. “The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent—at least, it does not if those sources are fairly described and reasonably faithfully followed.”

We can outline the legal argument against Roe (as well as the 1992 case, Planned Parenthood v. Casey, which introduced the concept of the “viability standard”) as an opinion having no meaningful foundation in (1) the text of the constitution, (2) history, or (3) precedent. 

Text of the Constitution

As the Supreme Court points out in the Dobbs decision, the Constitution makes no express reference to a right to obtain an abortion. Still, they acknowledged that several constitutional provisions have been “offered as potential homes for an implicit constitutional right.” This supposed textual basis for the right to abortion, according to the Roe decision, is the “right to privacy”—a right that is also not mentioned in the Constitution.

The supposed right to privacy, according to the Blackmun opinion in Roe, was believed to have been found in a grab bag of constitutional provisions, including the First, Fourth, Fifth, Ninth, and 14th Amendments. As the Dobbs decision notes, “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.” In other words, to the justices who voted for Roe, it was so obvious that abortion must be protected somewhere in the constitution that there was no need to argue that point.

The current Supreme Court—as have most objective legal scholars—disagreed that the right to abortion is obviously hidden somewhere within the text of the U.S. Constitution. 

History

The issue of whether the right to abortion can be found in the text relies in part on the history of the United States. The Dobbs ruling notes that the 14th Amendment’s Due Process Clause protects two categories of rights: rights guaranteed by the first eight Amendments and a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the “Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’”

But as the court found, until the latter part of the 20th century, a right to abortion was “entirely unknown in American law.” When the 14th Amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy. No state constitutional provision had recognized such a right either, until a few years before Roe. There was no federal or state court recognition of such a right, and no scholarly articles even proposing a constitutional right to abortion until a few years before Roe

The history of our country clearly showed that there was not a deeply rooted fundamental right to abortion.

Precedent

Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. The Supreme Court generally applies the doctrine of stare decisis (Latin for “to stand by things decided”) by following prior precedent unless there is a “special justification” for it to be overridden or overturned.

In the Dobbs ruling, the court said that a “proper application of stare decisis . . . requires an assessment of the strength of the grounds on which Roe was based.” The court found ​​that none of the precedents relied on in the Roe decision were relevant:

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed “potential life” and what the law challenged in this case calls an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.

The “special justification” for overturning Roe, according to the majority, included the nature of the court’s error (“Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided”) and the poor quality of its reasoning (“Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong”). 

Since there is not legitimately binding precedent making abortion a fundamental constitutional right, the court says “it follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’”

It is primarily for these reasons of text, history, and precedent that the court ruled in Dobbs that, “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”