Why Roe v. Wade should be overturned

[Emsworth]

It seems that one of the most common objections to John Roberts and many of President Bush's potential Associate Justice nominees is that the individual in question thinks that Roe v. Wade should be overturned. It seems as if a few people think this to be an extremist position. Yet, I would say that it is a very sound position, insomuch as the states are concerned.

The Constitution says nothing at all about abortions. The "right to an abortion" seems to have been manufactured out of thin air, without much constitutional justification. The Bill of Rights has been twisted, with references being made to the "right to privacy," to "penumbras," and the like. Yet the Supreme Court has never been able to point out, with any degree of seriousness and credibility, which particular clause guarantees the right to an abortion.

Privileges and Immunities

It is often said that the Ninth Amendment protects unenumerated rights, and that one of these rights is the right to an abortion. Let us (for the sake of argument) assume that this is correct, and say that abortion is indeed an unenumerated right. Supporters of Roe fail to demonstrate how this right applies in the context of the states, rather than the federal government. It is argued that the Ninth Amendment has been incorporated by the Fourteenth Amendment's privileges or immunities clause. Yet, I feel constrained to point out that this is certainly not the case, and departs greatly from the intent of those who framed it.

Congressman John Bingham, the writer of the Amendment and the House sponsor, said: "The privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States ... These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment" (emphasis added).

Senator Jacob Howard, the Senate sponsor, argued during the debate: "Here is a mass of privileges, immunities, and rights, some of them secured ... by the first eight amendments of the Constitution ... All these immunities, privileges, rights, thus guarantied by the Constitution, or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or a prohibition upon state legislation. States are not affected by them ... The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees" (emphasis added).

Here, we have the undeniable statements of both congressional sponsors (which was corroborated by others during congressional debates on the amendment) that the Fourteenth Amenedment only extends those rights guaranteed by the first Eight Amendments. The Ninth and Tenth Amendments, being only rules of construction, are not in any sense incorporated.

Accordingly, we must abandon the view that the privileges and immunities clause together with the Ninth Amendment protects the so-called right to an abortion.

Due Process & Legal Personhood

We come next to the another supposed justification for Roe: the due process clause. Yet, here, supporters of the decision must refer to a rather strained interpretation of substantive due process. Nothing in the congressional debates on this Amendment's passage, or in the early decisions of the Supreme Court relating to this Amendment, justifies this substantive due process doctrine (an invention of Roger Taney in the Dred Scott Case).

A third argument is that a fetus is not a legal person, and that abortions are therefore constitutionally protected. Here, I will agree that a fetus at any stage of a pregnancy does not constitute a person (in line with the common law, which held that killing an unborn child is not murder). But I would say that this argument is not relevant. Even if a fetus is not a person, there does not necessarily exist a constitutional right to destroy it. What clause guarantees such a right? I think that I have already established that neither the Ninth Amendment, nor any other amendment in the Bill of Rights, nor the Fourteenth Amendment does so. No other clause can be said to be relevant.

Effects of Overturning Roe

Consequently, Roe should most definitely be overturned, and I am rather disappointed that any judge holding this view is immediately painted as extreme. I would note, of course, that no federal restriction on abortion should be upheld; my argument here relates to the states.

The consequences of overturning (the oft-quoted wire hanger argument) are not relevant. The Supreme Court should not be in the business of deciding social policy: rather, its job is to interpret the Constitution.

Note: I apologize if the sectional division is inconvenient. My original post seemed like a rather long rant, so I though that dividing it up would make it more readable. Not that too many more people will read it now, though.

[Max Power]

Emsworth, do you get the Atlantic Monthly? They had a very similar article earlier this year.

[Emsworth]

Emsworth, do you get the Atlantic Monthly? They had a very similar article earlier this year.

I don't, actually. It's interesting to hear that they had a similar article, though. I would hope that more people read it; too many automatically assume that Roe is constitutionally sound.

[Max Power]

Emsworth, do you get the Atlantic Monthly? They had a very similar article earlier this year.

I don't, actually. It's interesting to hear that they had a similar article, though. I would hope that more people read it; too many automatically assume that Roe is constitutionally sound.

I read it. It was pretty interesting, although it was around six pages long, if I recall correctly. You should read the magazine, I think you'd like it.

[muon2]

I think there is another basis to question the basis for the Row decision. Let me start with this quote from Blackmun's decision:

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At this point the decision was reviewing historical precedent from ancient times to the present time of the decision. Contrary to some commentators, common law did address abortion, and it was not based on viability, but on a defintion of when life begins. As is clear in the quote, early common law set that point as the time of quickening, a reasonable standard that could be measured at the time with no instruments.

The protection of prenatal life shows up in this passage of the decision:

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The court seems to recognize that there is a fight between the old common law beginning of life and the view that life begins at conception. In either case the court seems to acknowledge that the beginning of life is an important concern. Another key disctinction here is thant the recognition of interest in the start of life has now been replaced by the phrase potential life. The next key part follows later where the decsion construes "person".

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At this point the historical documentation from prior to the 19th century seems to be disregarded. The common law meaning of persons from the beginning of life is now skipped, and with it any debate about where life begins. Shortly the decision returns to the beginning of life with this passage:

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This is the first insatnce where viability is fully elevated as definition of life, and specifically given a date. Even though the court goes on to say that the law puts life at live birth, this nuance remains in its decision.

The court then sets two benchmarks, based on best medical knowledge.

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I note that both of these points are due to medical science as it existed in 1973. This first benchmark is based on the relative mortality of abortion compared to childbirth, and this changes with advance in medical science. The second benchmark for viability also has changed substantially since 1973 as medical technology improves.

In my scientific view the decision is weak because it freezes facts that change with the advancement of medical technology. The court recognized that most viewed the debate about the beginning of life as falling between conception and quickening before the middle of the second trimester. Even so, the decsion took a specific dated scientific fact that placed viability outside this range, with knowledge that the science might change.

IMO, a stronger basis would be to invoke a definition of the beginning of life referencing best technology available, rather than a specific week from 1973 science. That would remain consistent with preexisting common law and provide for future improvements in technology to measure the onset of distinct human life.

[Emsworth]

I think there is another basis to question the basis for the Row decision. Let me start with this quote from Blackmun's decision:

...

At this point the decision was reviewing historical precedent from ancient times to the present time of the decision. Contrary to some commentators, common law did address abortion, and it was not based on viability, but on a defintion of when life begins. As is clear in the quote, early common law set that point as the time of quickening, a reasonable standard that could be measured at the time with no instruments.

I do not dispute that the common law protects abortion before quickening. Blackstone, Coke, and all of the other authorities acknowledge it. However, one must recognize that the common law is not absolute and unamendable. On the contrary, whenever statute and common law are in conflict, it is always statute that takes precedence.

If the common law were absolute, then all executions would have to be by hanging, and by no other means; then heresy would be a crime; then twelve years would be the age of consent; and so forth. If all of these may be changed by statute, then the common law of abortions should also be amendable, as there is nothing in the Constitution to the contrary. To quote Sir William Blackstone: "Where the common law and a statute, differ, the common law gives place to the statute."

Accordingly, even though the common law allowed abortions, states could pass acts prohibiting them. There is nothing in the Constitution, or anywhere else, that compels a state to retain the common law. Any analysis of the position of the common law, accordingly, is in my opinion irrelevant, when there is a contradictory statute. Thus, even the common law approach fails (IMHO) to justify Roe.

[muon2]

I am not sure if you got my point, and I apologize because when I wrote my cut-and-paste post it was late. I think an important point is that the court was searching for a point in a pregnancy when the states have a compelling interest in regulating abortion. I note that they passed over quickening, and settled on viability, primarily based on medical thinking of the day.

What they tacitly acknowledge is that there is a point of compelling state interest, and it is influenced by current medical thought about the onset of life. At the time of Roe, medical understanding of the brain was limited, and the fetal brain was truly an unknown. Imaging techonolgies in the last 25 years have greatly expanded the scope of knowledge of the brain, and its activity is an important medical determinant of life. Braindead was not a meaningful word when I grew up in the 60's, but brain activity was a central piece of the medical debate over Terry Schiavo.

I contend that if Roe was decided today, and the underlying principles were unchanged, the court would select a much earlier date for state control. I even think that viability would not be the factor, but brain activity would be. That sets the date for state control three months earlier than in Roe.

The key point in my post is that the decision set benchmarks based on specific science from 1973. Had only the principles been articulated, the benchmark end of the second trimester would have been migrating earlier as medicine advanced. The court recognized that the state has an interest in protecting the life of the unborn, it just didn't know what balance point to choose. If left to advancing modern medicine that balance point might well be much earlier in 2005.

[Emsworth]

I think an important point is that the court was searching for a point in a pregnancy when the states have a compelling interest in regulating abortion.

Yes, I understood that part. But my question is this: Which clause of the Constitution requires states to have a "compelling interest"? IMHO, there is no justification for the courts requiring state laws to pass such a standard. The only possible justification I can think of is substantive due process, but that doctrine is a separate matter which I addressed in my original post, up for debate.

Thus, even if at the common law a fetus is not a person, even if a state has no interest in regulating abortions, it is still constitutionally permitted to restrict them, because there is nothing in the text of the Constitution that specifically states otherwise.

[muon2]

I think an important point is that the court was searching for a point in a pregnancy when the states have a compelling interest in regulating abortion.

Yes, I understood that part. But my question is this: Which clause of the Constitution requires states to have a "compelling interest"? IMHO, there is no justification for the courts requiring state laws to pass such a standard. The only possible justification I can think of is substantive due process, but that doctrine is a separate matter which I addressed in my original post, up for debate.

Thus, even if at the common law a fetus is not a person, even if a state has no interest in regulating abortions, it is still constitutionally permitted to restrict them, because there is nothing in the text of the Constitution that specifically states otherwise.

I don't necessarily disagree with you. But, given that defining boundaries for state interest occurs with some frequency by the court, it's not clear to me that this becomes a basis for substantially changing the original ruling in Roe.

I think that an untested weakness in the original decision is its reliance on out-of-date facts. An attack that allows the court to hold to principles, but finds the facts wanting is consistent with past rationale for overturning rulings.

[Schmitz in 1972]

My philosophy on Roe V. Wade

Blackmun's opinion is horrendous. First he guides us on a whirlwind tour of his 'abortion throughout history' museum. Then he says "The Constitution does not explicitly mention a right to privacy." From then on his premise is that this unmentioned right exists and therefore the states have been maliciously denying women to abort for over a century. In contrast, Rehnquist's opinion is more legally sound and coherent. In 1868 at the time of the 14th amendment's approval (containing the due process clause) a great majority of the states had anti-abortion laws. If we are to follow the original intent, Rehnquist argues, fetuses must continue to be recognized as persons as they were in 1868. Further proof of his theory comes ironically from Blackmun's own opinion. He devotes several paragraphs to the American Medical Associations positon on the issue of abortion around the time of the 14th amendment. Read it and you'll see that the prevailing attitude at the time was that a fetus constituted a person.

For those of you who reject this on the basis of original intent not being a sound legal theory let me say this: If the original Constitution said "gay people have the right to marry" would a judge be justified to allow homosexual marriage based solely on that passage? Of course not! It would flagrantly contradict what the document meant at its writing! While the change in definition of the word 'gay' is an obvious example, there are dozens of other changes in definition which have been decidedly more subtle, allowing for their massive exploitation by liberal justices over the past few decades. You may call me closed-minded but it seems that original intent is the ONLY valid judicial philosophy because any other would render a Code of Laws absolutely meaningless!

[Emsworth]

Blackmun's opinion is horrendous. First he guides us on a whirlwind tour of his 'abortion throughout history' museum. Then he says "The Constitution does not explicitly mention a right to privacy." From then on his premise is that this unmentioned right exists and therefore the states have been maliciously denying women to abort for over a century. In contrast, Rehnquist's opinion is more legally sound and coherent. In 1868 at the time of the 14th amendment's approval (containing the due process clause) a great majority of the states had anti-abortion laws. If we are to follow the original intent, Rehnquist argues, fetuses must continue to be recognized as persons as they were in 1868. Further proof of his theory comes ironically from Blackmun's own opinion. He devotes several paragraphs to the American Medical Associations positon on the issue of abortion around the time of the 14th amendment. Read it and you'll see that the prevailing attitude at the time was that a fetus constituted a person.

The personhood of a fetus is not, I believe, relevant. Even if the fetus is a person, the Fourteenth Amendment's due process guarantee binds the states, not private people. Thus, even if a fetus is a person, there could arguably be another constitutional basis for a right to abortion (but as it happens, there is not). Furthermore, it is clear that abortions are not constitutionally banned, even if fetuses are considered persons.

Thus, the real question should not be, is the fetus a person? The real question should be, does any part of a Constitution prevent a state from banning abortions? To the latter question, the answer is clearly no, regardless of the fetus' personhood or lack thereof. And in this, we need not refer to the "original intent" of the Framers (which is often unclear, even murky), but only to the plain meaning of the words in the Constitution.

[A18]

You may call me closed-minded but it seems that original intent is the ONLY valid judicial philosophy because any other would render a Code of Laws absolutely meaningless!

It's the job of a legislator to put his intent into words.

I don't care if the framers of the 14th amendment had some secret intent. I care about the words they used, and what those words can fairly be said to mean, given the circumstances in which they were used, and the definitions of the time.

In that way, I agree with you.

[Emsworth]

You may call me closed-minded but it seems that original intent is the ONLY valid judicial philosophy because any other would render a Code of Laws absolutely meaningless!

It's the job of a legislator to put his intent into words.

I don't care if the framers of the 14th amendment had some secret intent. I care about the words they used, and what those words can fairly be said to mean, given the circumstances in which they were used, and the definitions of the time.

In that way, I agree with you.

I fully agree. The courts cannot enter the heads of the Framers and determine what they intended. Instead, they should only determine what the words meant. Even if they privately intended something contradicted by the plain (and original) meaning of the words they used, the words must take precedence.

I believe that the common law rule of statutory construction (the "Golden Rule") should be followed in interpreting both Acts of Congress and the Constitution. Judges must "adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further."

Thus, the first exception to the plain meaning rule is this: judges should only consider the intent of the Framers if that intent can be deduced from the text of the document itself. For example, the Constitution has two clauses referring to ex post facto laws and bills of attainder: "No Bill of Attainder or ex post facto Law shall be passed," and "No State shall ... pass any Bill of Attainder [or] ex post facto Law." From these two clauses, and many other similar examples, we may clearly deduce that a clause of the Constitution does not apply to the states unless expressly indicated otherwise.

And, the second exception to the plain meaning rule is that judges should not interpret the Constitution or a law so as to give rise to an absurd or illogical situation. For example, the Fourteenth Amendment's privileges and immunities clause incorporates the first eight Amendments to the Constitution, causing them to apply to the states. However, the First Amendment refers only to "Congress." Thus, when a court is applying the First Amendment to the states under the Fourteenth Amendment, it should ignore the word "Congress," so that it can avoid the "manifest absurdity or repugnance."

Aside from these two exceptions, the plain meaning (and original meaning) must always be respected, whatever the intent of the Framers expressed in other documents may have been.

[Schmitz in 1972]

All right, I'll agree that when the plain text of the Constitution answers a question that puts an end to the matter, but when the plain text is not perfectly clear (as it is in many occasions or else we wouldn't need a Supreme Court!) the question should be decided based on the best we can gather of the original intent.

[muon2]

A theme of agument on this thread has been directed at why Roe should not have been decided as it was in the first place. That is a different question than one seeking a reason to overturn Roe.

Historically, the court has been loath to directly reverse a decision based solely on the original argument. Instead the court has sought some other factors that allow the reversal. Typically those facts involve a change in the underlying facts, or a perceived change in the facts due to changes in society.

I would be curious to read not just why the original decision was flawed, but how the court reaches a significant change in its initial ruling Roe, or its modifications under Casey. That was the intent of my analysis.

[Emsworth]

A theme of agument on this thread has been directed at why Roe should not have been decided as it was in the first place. That is a different question than one seeking a reason to overturn Roe.

Historically, the court has been loath to directly reverse a decision based solely on the original argument. Instead the court has sought some other factors that allow the reversal. Typically those facts involve a change in the underlying facts, or a perceived change in the facts due to changes in society.

That, I feel, has been one of the greatest mistakes of the Supreme Court. It seeks to analyze societal factors, when its decisions should be based on the law. Its purpose is not to make social policy, but to interpret the Constitution.

Roe should be overturned for a very simple reason: the decision is constitutionally unsound. There is no constitutional provision prohibiting a state from banning abortions. The Ninth Amendment does not apply to the states, and "substantive due process" is a fiction: hence, there are no grounds for either the "right to privacy" or the "compelling interest standard." Both of these are inventions of the judiciary.

The very reason that there is no constitutional justification should be sufficient to overturn a ruling. Societal factors should not be considered, because the Supreme Court should not and is not meant to set social policy. But, as you point out, the Supreme Court has, sadly, taken a different approach.

[dazzleman]

Roe should be overturned for a very simple reason: the decision is constitutionally unsound. There is no constitutional provision prohibiting a state from banning abortions. The Ninth Amendment does not apply to the states, and "substantive due process" is a fiction: hence, there are no grounds for either the "right to privacy" or the "compelling interest standard." Both of these are inventions of the judiciary.

The very reason that there is no constitutional justification should be sufficient to overturn a ruling. Societal factors should not be considered, because the Supreme Court should not and is not meant to set social policy. But, as you point out, the Supreme Court has, sadly, taken a different approach.

I completely agree.  This decision is one of the worst cases of the court legislating social policy from the bench, and casting about for a flimsy justification of its overstepping its bounds.

The Warren-Burger court was a terrible era of judicial overreaching, and it has not gone away yet.  It's funny to hear liberals argue in favor of maintaining legal precedent as a reason not to overturn Roe vs. Wade.  Did they feel the same way about Plessey vs. Ferguson?  Did they object when the Supreme Court overturned a 1986 decision that allowed states to outlaw sodomy between consenting adults?  Both these cases violated judicial precedent.

The interesting thing is that the need to defend this decision seems to be hurting those who sought it.  Having cast their lot with the strategy of using courts to legislate by fiat, rather than taking the harder steps of building up public opinion, these people must now sweat bullets over every Supreme Court appointment, 32 years after their beloved decision.  It seems like a phyrric victory.  This would not be the case if the abortion lobby had convinced public opinion of their point of view, and perhaps made some compromises with state legislatures.  This is how democracy is supposed to work.

I wonder if the proponents of gay marriage are watching.

[opebo]

Why should anyone care if you think it is 'unsound', Emsworth?  It is all a matter of interpretation, and after all the result was a wonderful one.

[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.

[Emsworth]

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 disagree. Citizens are guaranteed "privileges or immunities"; however, "due process" is granted not only to citizens, but also to "persons." We need not even consider the ficticious notion of "ordered liberty" (a phrase which one finds nowhere in the Constitution); rather, one need only consider the right of even illegal immigrants to not be deprived of life without due process.

Thus, even if a fetus is not a citizen under the Fourteenth Amendment by virtue of not being born, it could still be a person. As it so happens, I do not believe that a fetus is a person, because the common law holds that it is not a person, but that is a different matter.

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As I indicated in the original post, the Ninth Amendment only binds the federal government, and not the state governments. The term "privileges or immunities" encompasses the first eight Amendments only. Such was the original meaning accorded to the clause, and would hold true today if only the Supreme Court decided differently in the Slaughterhouse Cases.

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I disagree. The burden of childbearing is not one imposed by the law, but by nature and is, except in cases of rape, assumed by the woman out of her own free will. Thus, the equal protection clause is not implicated, because the government is not involved.

However, let me accept your argument's premises, and make a counterargument. Equal protection is not being denied, because both men and women would be prohibited from having abortions. This probably sounds silly to most, but it is no sillier than your argument that the right to abortions is protected under that very same clause.

[DanielX]

One thing neither side has really discussed is a constitutional amendment. I, for one, would favor an amendment that eliminated federal authority on all reproductive issues (not just abortion but gay marriage (or straight marriage, or polygamy, or...), prostitution, birth control, that sort of thing), leaving it to the state and local governments. That way, Tennessee will likely ban abortions except in extreme cases, while they'll be readily available in Vermont. My only concern is that this amendment should not be needed - Roe V. Wade, for instance, was one of the most disturbing Supreme Court rulings in history (Dred Scott and Kelo vs. London are two other particularly disturbing ones, although the latter is perhaps the least odious of the three).

[Emsworth]

I, for one, would favor an amendment that eliminated federal authority on all reproductive issues (not just abortion but gay marriage (or straight marriage, or polygamy, or...), prostitution, birth control, that sort of thing), leaving it to the state and local governments.

I think that such an amendment, if the Constitution as it currently stands is interpreted correctly, should not be necessary. There is no clause in the Constitution enumerating any of these powers. Of course, an amendment might be an acceptable idea, insomuch as it would prevent overexpansion by Congress on commerce clause grounds.