Roe v Wade: An Analysis
Yesterday the Supreme Court of the United States overturned the 1973 Roe v. Wade verdict, which set forward a framework for abortions in the United States. Lets take a look at why this was overturned and what could have been done about it.
Court Opinion
In the original Roe v. Wade case, the courts opinion was that only allowing abortions for life-saving procedures is a violation of the Due Process clause of the Fourteenth Amendment. That clause is part of Section 1 of the fourteenth amendment, which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Specifically, the original Roe v Wade verdict hinged solely on the "liberty" portion of the due process clause. The supreme court of today does not agree. They state in the Dobbs v. Jackson case:
The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
...
Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.” The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty” - has long been controversial.
The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 586 U. S. ___, ___ (internal quotation marks omitted). The term “liberty” alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.
Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.
So, disallowing abortions is not a violation of the due process clause, and is not violating anyone's "liberty". Therefore, the 1973 verdict was overturned.
Legislating from the Bench
We're not supposed to have political judges; i.e., they're not supposed to lean one way or another politically. They're supposed to hand down their verdicts consistently and based on the law, not how they feel about the law.
Not only did the 1973 verdict have an incorrect interpretation of the Due Process clause, it also created law by laying out a framework of what it thought the law should be:
[The State] has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.
The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.
This reads much like a law would, and was used as law for the last 38 years. Except, the legislative branch is supposed to be the branch that makes law, and the judicial branch is the branch that's supposed to interpret and enforce the law. When you have a single branch that makes, interprets, and enforces the law, what do you call that? That's right, a dictatorship. This is why it's said that "legislating from the bench" is judicial overreach -- it's doing something it was never meant or is supposed to be doing in the first place.
Codification
One way this could have been solved is by the verdict of Roe v. Wade being codified into law. The house and senate could have taken the text of it, as posted above, and simply turned that into law. Since it was passed, there have been four Democrat administrations:
- Jimmy Carter
- Bill Clinton
- Barack Obama
- Joe Biden
Jimmy Carter didn't have a term where the democrats controlled the House, Senate, and the Executive branch, so we can't really blame his administration. The Biden administration, has also not had a term yet with a clear Democrat majority in both the Senate and House, and therefore you can't really blame his administration either.
During the Clinton administration, however, from 1993-1995, the Democrats had a majority in both the Senate (53%) and the House (59.2%). The Obama administration also had a majority in the Senate (58%) and the House (58.8%) from 2009-2011. Either administration could have easily passed legislation that mirrored Roe v. Wade; but neither of them did.
My Body, My Choice?
Looking closer at Roe v. Wade, it didn't even do what the democrats are wanting anyway. Lets take a look at the first trimester explanation again:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.
That clearly says that the abortion decision is left to "the medical judgment of the ... attending physician," and nothing at all about the woman's choice. It did not give women the choice to have an abortion; it left that decision up to the physician.
Conclusion
If you're upset over the Dobbs v. Jackson verdict overturning Roe v. Wade, make sure you know your facts and that you're putting your anger in the right place. To summarize:
- Dobbs v. Jackson did not ban abortion, it merely returned the decision to the legislators, the ones that should have made the decision in the first place.
- For the last 38 years, Roe v. Wade could have been codified in law, instead of letting the verdict stand as law. This would have clarified the intent of the legislators and may have caused Dobbs v. Jackson to be a non issue, and may have not even made it to the Supreme Court at all.
- Roe v. Wade did not even do what most people are thinking it does; it only legalized abortion based on the "medical judgment of the pregnant woman's attending physician." It did not give women the "right to choose;" i.e. the right to have an abortion based on their decision and their decision alone.
Like any other political issue, make sure you know your facts.