leave roe vs. wade in place as is
*Planned Parenthood v. Casey
For all the talk about Roe v. Wade among pro-choice groups, Planned Parenthood v. Casey really is the more important case when it comes to the issue now. Planned Parenthood v. Casey, though, did see the "essential holding" of Roe v. Wade, so I guess that is where it comes from. Both rulings, though, are pretty much Constitutional nonsense. Even many liberal legal scholars will agree now that Roe is really lacking when it comes to a basis in law (though Planned Parenthood v. Casey is a sightly different story). It takes two large leaps to get to the decision the Court made in Roe v. Wade. First, you have to hold that the 14th Amendment contains a right to privacy. Then, finding that, you have to hold that such a right to privacy (which extends beyond the rights granted by the 4th Amendment) protect a woman's right to an abortion. Both of these findings are pretty shaky Constitutionally. The second one finding can reasonable be inferred from the first if the right to privacy is expansive enough, but I don't see how you can derive such an expansive conception of privacy from the text of the 14th Amendment. Really, I fail to see how the 14th Amendment creates any right to privacy beyond reinforcing the provisions of the 4th Amendment. To say the 14th Amendment creates a right to privacy that in turn extends to a right to abortion is no more legally defensible than saying that the 14th Amendment creates an uninhibited right to contract. In this sense, Roe v. Wade was, like Lochner, wrongly decided by Judges using substantive due process to insert personal policy preferences into law.
So, to the hypothetical, I would say strike down Row v. Wade and by extension Planned Parenthood v. Casey and allow legislatures at various levels to the question of abortion.
It does my heart good to know that there are more and more people who recognize the flimsiness in the doctrine of "substantive due process" and who see the similarity between
Roe and
Lochner. Don't forget that the first Supreme Court precedent which infused substantive meaning into one of the Due Process Clauses was
Dred Scot v. Sanford. The Court invoked the Due Process Clause of the Fifth Amendment as one of the many reasons for saying that the Missouri Compromise was unconstitutional.
Also be aware of the fact that the last clause of Section 1 of the 14th Amendment, the Equal Protection Clause, has been a source for the Justices to also legislate from the bench, and the Court could have just as easily invoked that Clause as the source of the "right to privacy." That was what had happened in
Skinner v. Oklahoma, 1942, when the Court spontaneously proclaimed that being able to reproduce is "one of the basic civil rights of man."Somehow, that principle was being inferred from the Equal Protection Clause. And ever since then the Court has often claimed that the Equal Protection Clause requires "strict scrutiny" of laws that abridge "fundamental rights," even when those those rights are not enumerated in the Constitution. Shortly before
Roe v. Wade the Court handed down
Eisenstadt v. Baird, 1972, which invoked the Equal Protection Clause as the protector of the "right to privacy." The right to marry has been inferred from the Equal Protection Clause in cases such as
Zablocki v. Redhail, Turner v. Safley, and more recently and more famously,
Obergefell v. Hodges. The right to VOTE has been frequently inferred from the Equal Protection Clause, thus making the 15th, 19th, and 24th Amendments unnecessary and a waste of time and effort to add to the Constitution.
Even if the doctrine of "substantive due process" becomes erased from the legal books, that does not mean that
Roe and
Casey have to go. The Court could still infer that the right to abortion is protected by the Equal Protection Clause. After all, laws banning abortion "discriminate" against women. That's probably the way Justice Ruth B. Ginsburg thinks about it.
Poll
