• Paul Stark

The three fundamental problems with Roe v. Wade



On Jan. 22, 1973, the U.S. Supreme Court decided Roe v. Wade and its companion case, Doe v. Bolton. The Court ruled that abortion must be permitted for any reason before fetal viability—and that it must be permitted for "health" reasons, broadly defined in Doe (such that they encompass virtually any reason), all the way until birth. Roe effectively legalized abortion-on-demand nationwide.

The New York Times proclaimed the verdict "a historic resolution of a fiercely controversial issue." But now, 44 years later, Roe has yet to "resolve" anything. And it never will. Three fundamental problems will continue to plague the Court and its abortion jurisprudence until the day when, finally, Roe is overturned.

Unjust

First, and most importantly, the outcome of Roe is harmful and unjust. Why? The facts of embryology show that the human embryo or fetus (the being whose life is ended in abortion) is a distinct and living human organism at the earliest stages of development. "Human development begins at fertilization when a sperm fuses with an oocyte to form a single cell, a zygote," explains a leading embryology textbook. "This highly specialized, totipotent cell marks the beginning of each of us as a unique individual."

Justice requires that the law protect the equal dignity and basic rights of every member of the human family—irrespective of age, size, ability, dependency, and the desires and decisions of others. This principle of human equality, affirmed in the Declaration of Independence and the United Nations' Universal Declaration of Human Rights, is the moral core of western civilization. But the Roe Court ruled, to the contrary, that a particular class of innocent human beings (the unborn) must be excluded from the protection of the law and allowed to be dismembered and killed at the discretion of others. "The right created by the Supreme Court in Roe," observes University of St. Thomas law professor Michael Stokes Paulsen, "is a constitutional right of some human beings to kill other human beings."

After Roe, the incidence of abortion rose dramatically, quickly topping one million abortions per year and peaking at 1.6 million in 1990 before gradually declining to just under one million in 2014 (the latest year for which complete estimates are available). Under the Roe regime, abortion is the leading cause of human death. More than 59 million human beings have now been legally killed. And abortion has detrimentally impacted the health and well-being of many women (and men). The gravity and scale of this injustice exceed that of any other issue or concern in American society today.

Unconstitutional

The second problem with Roe is that it is an epic constitutional mistake. Justice Harry Blackmun's majority opinion claimed that the "right of privacy" found in the "liberty" protected by the Due Process Clause of the Fourteenth Amendment is "broad enough to encompass" a fundamental right to abortion. There is no reason to think that's true.

"What is frightening about Roe," noted the eminent constitutional scholar and Yale law professor John Hart Ely (who personally supported legalized abortion), "is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. … 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."

Indeed, "[a]s a matter of constitutional interpretation and judicial method," writes Edward Lazarus, a former Blackmun clerk who is "utterly committed" to legalized abortion, "Roe borders on the indefensible. ... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the … years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."

But Roe is even more ridiculous than most observers realize. The American people adopted the Fourteenth Amendment during an era in which those same American people enacted numerous state laws with the primary purpose of protecting unborn children from abortion. A century later, Roe ruled that the Fourteenth Amendment somehow prevents Americans from doing what the ratifiers of the Fourteenth Amendment actually did. "To reach its result," Justice William Rehnquist quipped in his dissenting opinion, "the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."

That's absurd. "The only conclusion possible from this history," Rehnquist explained, "is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

Undemocratic

Third, Roe is undemocratic. Roe and Doe v. Bolton together struck down the democratically decided abortion laws of all 50 states and replaced them with a nationwide policy of abortion-for-any-reason, whether the people like it or not. Of course, the Court may properly invalidate statutes that are inconsistent with the Constitution (which is the highest law). But Roe lacked any such justification.


Justice Byron White, a dissenter in Roe, explained the problem in his dissent in Thornburgh v. American College of Obstetricians & Gynecologists. "[T]he Constitution itself is ordained and established by the people of the United States," he wrote. "[D]ecisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people's authority, for such decisions represent choices that the people have never made, and that they cannot disavow through corrective legislation." Roe defied the Constitution and other laws that the American people agreed upon—and imposed the will of the unelected Court instead.

The radical (and frequently unrecognized or misreported) scope of the Roe regime, moreover, was not and has never been consistent with public opinion, which favors substantial legal limits on abortion. Millions and millions of Americans disagree with the abortion policy the Court invented. They want to have a say. The Court decided they could have none.

Why Roe will fall

So these are the three fundamental and intractable problems with Roe v. Wade. The Supreme Court abused the Constitution to usurp the authority of the people by imposing an unjust policy with morally disastrous results. Unjust. Unconstitutional. Undemocratic.

Many abortion defenders want and expect Roe to last forever. It will not. "[A] bad decision is a bad decision," concedes Richard Cohen, a supporter of abortion, in the Washington Post. "If the best we can say for it is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well."

It's true that a legal embarrassment, like Roe, can sometimes survive long-term. But not when it produces an atrocious outcome that disenfranchises millions of compassionate Americans who will not rest, and will never rest, while the Court's usurpation remains in effect.

Sooner or later—hopefully sooner—Roe v. Wade will fall.

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