In its Roe v. Wade decision, the U.S. Supreme Court ruled that the Constitution prohibits Americans from legally protecting human beings in utero. Killing those human beings, the Court said, must be allowed for any reason.
You don't have to be pro-life in order to want this decision overturned. That's because Roe was a flagrant judicial mistake that usurped authority belonging to the American people rather than to the Court.
John Hart Ely, the eminent legal scholar and Yale law professor, famously concluded that Roe "is a very bad decision," but "not because it conflicts with … my idea of progress." Instead, he explained, "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."
Here are three of Roe's most egregious errors.
(1) Roe asserted a right to abortion that is actually just a non sequitur.
Roe said that the Fourteenth Amendment includes a right to abortion. The Fourteenth Amendment says nothing about abortion. The Court claimed, however, that the amendment's protection of "liberty" (states may not deny it without due process) implies a "right to privacy" that is "broad enough to encompass" a fundamental right to abortion.
Why think this? The Constitution does protect many freedoms, but countless activities, including many activities done in "private," are not considered protected liberties under the Constitution. Why is the dismemberment and destruction of unborn human beings protected? Roe said that abortion restrictions can be a "detriment" to people (raising a child, the Court observed, is taxing). But that's also true of other legal restrictions that are uncontroversially permissible (such as a ban on infanticide even when an infant's parents face economic hardship).
This was the Court's "argument" for a right to abortion. The conclusion is a non sequitur—it simply does not follow from anything the Court said.
That's no secret among those who have read the Roe decision and tried to track its logic. Roe "provides essentially no reasoning in support of its holding," acknowledges Edward Lazarus, a supporter of legalized abortion who clerked for Justice Harry Blackmun (the author of Roe). "As a constitutional argument," adds University of Pennsylvania law professor Kermit Roosevelt (another supporter of legalized abortion), "Roe is barely coherent. The Court pulled its fundamental right to choose more or less from the constitutional ether."
And that's putting a positive spin on it.
(2) Roe distorted history in order to seem less ridiculous.
Roe's claim of a Fourteenth Amendment abortion right is even worse than unfounded. It's flatly contradicted by the very people who agreed to the Fourteenth Amendment in the first place.
That amendment was adopted in 1868. During the same era, states enacted a wave of statutes banning elective abortion. The Ohio legislature, for example, ratified the Fourteenth Amendment in early 1867. A few months later, the same legislature voted to strengthen Ohio's abortion ban, with the committee overseeing the bill calling abortion "child murder."
These facts pose a fatal problem for Roe's alleged abortion right. According to Roe, the Fourteenth Amendment prohibits doing exactly what the people who adopted the Fourteenth Amendment actually did. This is a ridiculous view. It's presumably why, among the decision's other debunked historical claims, Roe tried to suggest (on the basis of a tissue-paper-thin theory put forward by a lawyer for NARAL) that the anti-abortion laws weren't meant to protect unborn children. Overwhelming historical evidence shows otherwise.
"To reach its result, 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," noted Justice William Rehnquist in his Roe dissent. "The only conclusion possible from this history 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."
The American people have never agreed to a constitutional right to abortion. That's a fact, and it's an obvious and undeniable fact.
(3) Roe offered a circular argument to justify its decision about who lives and who dies.
Which human beings may be legally protected from lethal violence and which human beings may not be? Roe drew the line at "viability"—when a child can survive (albeit with assistance) independently of her mother. (Roe also said, however, in conjunction with Doe v. Bolton, that any limit on post-viability abortion must include an exception so broad that it could effectively nullify the limit.)
What reasons did the Court give for this hugely significant decision, one with life-or-death consequences on a massive scale? Well, none. The Court had "no reason at all," observes Harvard law professor Laurence Tribe (a strong abortion supporter). It chose viability arbitrarily. Roe merely offered this one-sentence circular explanation: "[Viability is the 'compelling' point] because the fetus then presumably has the capability of meaningful life outside the mother's womb."
Viability is important, that is, because viability is viability. "The Court's defense," quipped John Hart Ely, "seems to mistake a definition for a syllogism."
If legislators crafting a law had no rationale whatsoever for a crucially important choice, that would be appalling. This is far worse. Supreme Court justices are not lawmakers. They are judges who are supposed to interpret and apply the law that already exists. And they didn't even pretend that their viability criterion had anything to do with it.
How Roe undermines democracy
So Roe v. Wade badly misapplied the Constitution—or just disregarded it altogether—in order to invent and impose a new nationwide abortion policy. Why is this such a big deal?
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 took the authority to determine abortion policy away from the elected branches of government. It undermined our democracy and the separation of powers enshrined in our Constitution. And it continues to do so as courts decide the fate of even the most modest abortion-related laws enacted by our elected representatives. That's why Roe must finally go.
Supporters of Roe aren't in the habit of trying to defend it on its legal merits. "You will be hard-pressed to find a constitutional law professor … who will embrace [Roe] itself rather than the result," says Kermit Roosevelt. Those who defend Roe do so entirely because they like the policy it created. But this is America. The people should be allowed to have a say.
"[A] bad decision is a bad decision," writes Richard Cohen, a supporter of abortion, in the Washington Post. "If the best we can say for [Roe] is that the end justifies the means, then we have not only lost the argument—but a bit of our soul as well."
This article appears in the January 2019 issue of NRL News.