This column by ACRU Senior Legal Analyst Ken Klukowski was published on January 22, 2013 on Breitbart.com.
Today marks the 40th anniversary of Roe v. Wade, where the U.S. Supreme Court ruled that the Constitution provides a right to have an abortion in one of its most controversial decisions in history. More than 50 million unborn children have been aborted since Roe was decided on Jan. 22, 1973.
Polls provide conflicting data as to where Americans stand on this issue, largely because many Americans don’t understand Roe or what overruling it would mean. Many young people are not even familiar with the name Roe v. Wade, though everyone knows what abortion is. But many who know Roe‘s name misunderstand what it provides, or why overruling it would restore democratic control on this hot-button issue.
Justice Harry Blackmun wrote the opinion in Roe v. Wade in a 7-2 decision, with Justices Byron White (appointed by Democrat Jack Kennedy) and William Rehnquist (appointed by Republican Richard Nixon) dissenting. The Court built on its 1965 decision in Griswold v. Connecticut which held the Constitution contains a right to privacy, holding in Roe that this means the Constitution also provides a right for a woman to terminate a pregnancy by ending the life of her unborn child.
This took abortion out of the hands of the American people. Before 1973, abortion was a state issue, not a federal issue. And it was an issue Americans in the 50 states could freely debate, and decide which laws on the issue reflected their wishes and values.
That is why both pro-life and pro-choice Americans should support overruling Roe v. Wade. Doing so would take this issue out of presidential politics, out of Supreme Court confirmations (which have been plagued for decades by questions of how a nominee would vote on Roe), and would instead allow voters to decide in their own states whether to allow abortions, and if so, under what conditions.
Perhaps a dozen states would become completely anti-abortion, not allowing abortion under any circumstances. Perhaps a half-dozen would be completely pro-abortion, allowing even late-term abortion right up to the moment of birth. The rest would allow abortion under some circumstances, such as within the first couple months of a pregnancy, or in the event that the woman was the victim of rape.
This does not mean that living in a pro-life state would keep anyone from getting an abortion. Since there is a constitutional right to interstate travel, if a woman desiring abortion could not get one in her state, she could travel to one of the many states where she could obtain an abortion.
Regardless of where you stand on abortion, Justice Blackmun’s opinion in Roe is one of the worst in history. Court opinions set forth the law, then apply that law to the facts of the case. Roe does not contain a single page of legal reasoning. Instead, Blackmun takes the reader through a bizarre survey of the history of abortion and beliefs about pregnancy, through the Persian empire, as well as ancient Greece and Rome. It traces the history of a doctor’s Hippocratic Oath back to the year A.D. 130, discusses Christian theology, and makes observations about medieval philosophy.
What all these have in common is that they are utterly irrelevant to the meaning of the words in the United States Constitution. Not one of those is part of American law, and none of them have any place to interpreting the Supreme Law of the Land.
Roe created a trimester system, holding that women have certain abortion rights during the first three months of pregnancy, then different rights during the second three months, then still different rights during the last three months of pregnancy. Once again, none of that is rooted in American law.
The American people became incensed over unelected, unaccountable judges yanking an issue from the public’s ability to debate and decide, declaring the issue to be dictated by the Supreme Law of the Land, and therefore one on which the people could no longer vote. This issue has haunted us ever since, and was one of the major mobilizing factors in the rise of the Religious Right in national politics.
The Supreme Court considered overruling Roe v. Wade in the 1992 case Planned Parenthood v. Casey. The Court upheld the right to abortion in a 5-4 split decision, with Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter writing a very rare joint opinion.
Casey downgraded abortion rights, making clear that it was not a fundamental right in the Constitution, and as a “nonfundamental right” it could be more heavily regulated than other rights. The Court also jettisoned Blackmun’s trimester framework, instead saying the test before the unborn child is viable outside the womb is whether the restriction imposes an “undue burden” on a woman’s ability to have an abortion. After viability, any restrictions short of a complete ban can be imposed, so long as they also safeguard a woman’s life and health.
The test from Casey is the modern rule on abortion, a subjective and malleable test which courts nationwide muddle through when new abortion laws are passed.
The reality is that abortion is not mentioned anywhere in the text of the Constitution. For most of our history, that would settle the issue nationwide that abortion is not a constitutional right.
Yet starting in 1905 the Court began recognizing certain rights not found in the Constitution’s words. These “implied rights” are ones that are “deeply rooted in the history and tradition” of the American people, so much so that they are essential to an “American scheme of ordered liberty.” In other words, it must be a right recognized when the Constitution was adopted in 1789, and unquestionably embraced throughout the country from that time until now.
Certain rights clearly meet this standard, such as the right of a man to marry a woman, or the right to have children, or the right to raise those children. The Court decided issues on each of those rights in the past century.
But abortion does not meet that standard. It is neither in the words of the Constitution, nor is it deeply rooted as a right in American history and tradition from our founding. So it’s no right at all; it’s a public-policy issue for the American people to decide at the state level.
American history is littered with a handful of Supreme Court decisions that were egregiously wrong, and caused terrible pain and suffering before they were corrected. One was Dred Scott v. Sanford, which declared that black Americans are not citizens, and therefore federal courts have no jurisdiction to hear their lawsuits. That took the Civil War and two constitutional amendments (the Thirteenth and Fourteenth Amendments) to correct. Another is Plessy v. Ferguson, creating the doctrine of “separate but equal” regarding racial discrimination, which was overruled in Brown v. Board of Education.
Roe v. Wade belongs on that list of national disgraces. It is devoid of support in the Constitution’s text and history, and has no basis in law. And as modern technology such as “4-D” ultrasounds allow women to see their unborn babies moving around in the womb, sucking their thumbs and waving their arms, additional restrictions on abortion become increasingly popular.
Today there are five votes on the Supreme Court to keep Roe v. Wade (four liberal justices plus Kennedy), two votes already on record to overrule Roe (Antonin Scalia and Clarence Thomas), and another two votes that are not yet known because the Court has not recently considered the issue, but
are widely expected to overrule Roe (John Roberts and Samuel Alito). So the fate of Roe v. Wade may turn on a one-vote change on the Court.
And thus the struggle continues. Pro-life Americans continue to fight for the day when this issue will be restored to the American people to decide, when we can freely debate whether we want to be a culture that celebrates innocent life.