Why Roe v. Wade should be overturned

[migrendel]

As I have stated earlier, the decision needs to be broadly modified. I doubt that we can guarantee future generations of women their freedom unless we can defend it reasonably. No intellectually honest person, in light of the fact that the Fourteenth Amendment directly states that citizenship begins at birth or naturalization, can seriously maintain that fetuses have Constitutional rights. PD once asked me if this gives people the right to murder illegal immigrants. I could only respond that the right to pick off border-runners with your uzi is not central to the concept of ordered liberty.

I honestly see nothing in the Due Process Clauses to indicate a right to privacy. I also think that penumbras are just made up. But the Ninth Amendment holds great promise. Some have claimed that it is merely a construction rule. However, if it can preempt certain constructions of the Constitution itself, it is at least coequal with anything else in the document, and these unenumerated rights acquire a fundamental status.

The next part is utterly subjective. The courts are entrusted with the onerous task of having to divine these rights in order that the Constitution does not disparage them. The right to privacy seems to be the most self-evident. I doubt that many people, apparently including John Roberts, would deny its existence (at least not when removed from the company of like-minded Reagan Administration lawyers). I suppose it is also subjective to include abortion among these rights. The fact of the matter is that nothing can prepare a judge to make such a determination, and he or she can only be expected to do his or her best.

This, however, is the wrong approach, in my opinion. Abortion is a matter that pertains directly to women, and the legal considerations should be centered on women. It is my contention that the right to abortion is protected under the Equal Protection Clause.

It is a sad fact of biology that the burdens of child-bearing are not shared equally by men and women. But men and women are equals under the law. Since women would see their ability to exercise their political, social and legal rights severely compromised by the inability to make a choice about the decision to have children, the right to abortion is thus essential. It is not an issue of sybaritic irresponsibility about fertility, but one of equal rights. The connection is indirect, inasmuch as the woman was not impregnated by the government, but the fact remains that such burdens would not fall upon her head unless the government, by the conscious act of banning abortion, involved itself.

We have heard too much about how this is a private choice. I can accept that statement legally, but I cannot deny that the decision to have an abortion often affects a great many people. It is a decision of extraordinary import, and unless we ensure that it is made by those women whose autonomy is at stake more than anything else, we have miscarried the duty of Constitutional justice.