Roe is Bad Law

Happy Martin Luther King Jr. Day!  Remembering Dr. King is not our primary focus today, but he is well worth honoring as one of the great heroes of American history.

Our purpose today is Roe v. Wade. Tuesday will mark the 46th anniversary of Roe, where the Supreme Court decided 7-2 that the US constitution prohibits the states from banning abortion during the first trimester. As you might be able to tell, I’m not a fan.

I have philosophical, religious, and scientific (yes, scientific) reasons for opposing abortion. But my purpose here is a legal argument, one I would hope pro-choice people would find convincing, even if they disagree with my beliefs on abortion. Because beyond Roe v. Wade reaching a conclusion I find immoral, it’s just bad law.

A quick thing to debunk at the start. Overturning Roe would not make abortion illegal. It would allow states to ban abortions during the first trimester. In California, overturning Roe wouldn’t mean anything. Roe holds that states cannot ban abortion during the first trimester, and only during the second trimester to protect the life of the mother. That’s it. Even still, it’s a bad decision.

In Roe, an unmarried woman sued a Texas state law that banned abortion except in the case of danger to the life of the mother. The 7-2 decision, authored by justice Harry Blackmun (which I have read, if you’re curious), held that this law, and those similar to it, infringed on an individual’s inferred right to privacy, justified from the 4th and 9th amendments and then applied to the states in the 14th amendment.

Now this right to privacy is something of an open question. It is not expressly listed in the Constitution, which has lead some originalists to define it in an extremely narrow sense. However, a number of court decisions over the last century have ruled that some right to privacy does exist, the question still remains of how broad that right extends.

The 9th amendment is similarly vague legal territory. Originally, the 9th amendment existed as a way to save face for the Federalists trying to get the Constitution passed. In debates over the Constitution, the Federalists argued no bill of rights was necessary, as it might lead to a supposition that Congress had more power than they were expressly granted in Article 1 of the Constitution. When they created a bill of rights anyway, the 9th amendment was added as a way to cover for that argument – that just because this bill of rights expressly protected certain rights, the powers of Congress were still limited, even if they didn’t violate the rights protected in the first 8 amendments.

However, for the past 80 years ago, the 9th amendment has been construed as a way for the federal government to protect unenumerated individual rights from the states. The holding that the 9th amendment protected a broad right to privacy, which would form the basis of the Roe decision, didn’t come onto the books until the 1968 case Griswold v. Connecticut.

Only the court fails to establish why the right to privacy established in Griswold using the 9th amendment extends to abortion. It lists off previous cases to show that a broad right to privacy exists, and they say it’s broad enough to cover abortion. It acknowledges that this right is not absolute, but where it’s bounds are, and why abortion falls within those bounds, the court doesn’t bother to answer. The courts says states do have a compelling interest in protecting prenatal life, but only after “quickening”, which we’ll get to in a minute.

So in Roe, the court decided all abortions are protected nationwide during the first trimester, states can restrict abortion during the second trimester in order to protect the health of the mother, and states can restrict abortion during the third trimester, after the fetus is considered viable, to protect the life of the unborn.

Only this runs contrary to what the court said earlier in the case. When refuting an argument presented by Texas, the court goes into a long and fascinating look at how our conceptualization of unborn life has evolved over history, looking back at the ancients, the medieval period, and English law. They find that for most of history, fetuses were only considered persons after quickening, the pre-scientific term for the point a fetus becomes viable. And to close this point, the court says “when those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

You can make the argument that with the wide diversity of ideas on when life begins, it is not the place of the Supreme Court to have the final say. Only the court doesn’t hold to this assertion. The court says they don’t want to determine what counts as life, but by creating a right to abortion, they are determining what the people can define as life through their legislatures. Their reasoning for why states can restrict abortion in the third trimester but not earlier is that a fetus wasn’t considered a person before viability until the 19th century. Now it could be just me, but the idea of appealing to medieval answers to scientific questions doesn’t seem like the best method of crafting modern law.

To recap, in Roe, the court found that the inferred right to privacy was broad enough to protect abortion. However this right to privacy is a vague legal area, and it’s quite possible the 9th amendment has been construed to mean something it originally didn’t. Even granting the premise that the 9th amendment protects a broad right to privacy, the court doesn’t specify why that covers abortion, or what the limits to that right are. Lastly, the court claims to abdicate on the question of personhood, but by creating a framework, even ignoring that the framework is rooted in a medieval definition of personhood, they are in fact answering the question of personhood, and frankly, writing into the Constitution something that doesn’t exist.

You might be wondering “but Dallas! If Roe v Wade is as bad of a decision as you make it out to be, how has it been able to remain precedent for the last half century, especially when it’s been under such scrutiny from conservatives and Republican nominates have been in the majority on the court since 1968?” There are a couple reasons for this.

First, bad Supreme Court decisions have surprisingly long shelves lives – they didn’t get around to formally overturning Korematsu, the decision allowing for the internment of  Japanese Americans during World War 2, until last year. Second, there are a number of justices who probably like the result of Roe enough they tolerate a questionable legal decision that got them there. The third is that Roe is still a popular decision, and overturning it at the present moment, especially 5-4, and especially if those 5 justices were men, would do serious damage to the court’s reputation. Even the Supreme Court must acknowledge political realities.

But most importantly, Roe is not technically the court’s ultimate law when it comes to abortion. That would be Planned Parenthood v. Casey, a 5-4 decision from 1992. Three Republican appointees authored the decision, which reaffirmed that the 9th amendment protect early-term abortions while slightly changing Roe’s application. (People forget there was a time when 8 of the 9 justices on the court were appointed by Republicans.) Instead of Roe’s trimester framework, now state abortion restrictions were judged by whether they posed an “undue burden”, defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

So why does Roe still matter, if the case in question is Casey? First, Roe is still what’s in the center of the abortion debate. It’s THE abortion case in the cultural sense, even if abortion law has evolved in the legal sense. That’s why every Supreme Court justice spends their confirmation hearings get grilled about Roe. As we said before, Roe has large public support, which I believe stems from lack of knowledge about the actual decision. And lastly Roe is still legal precedent with legal power. States cannot act in a way that defies it. It provided the justification to prevent states from strict abortion restrictions, and if that is to be undone Roe must also be undone.

And the time for that is long overdue.

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