End the (Judicial) Atrocity

Forty-six years after the decision in Roe v. Wade was handed down by the Supreme Court, the topic of abortion has yet again surged to the forefront of the American political conversation. In recent days, state legislatures in several conservative states have taken direct aim at the holding in Roe (and its progeny Casey v. Planned Parenthood), and have passed bills curtailing abortion access.  The most stringent of these has emerged from Alabama, where the state legislature has passed a bill (now signed into law by Governor Kay Ivey) outlawing abortion except in cases where the life of the mother is threatened and criminally punishing abortionists with prison sentences of up to 99 years.  The Alabama law is so controversial, in fact, that noted pro-life luminary Pat Robertson has indicated that the new law “has gone too far,” citing its lack of a rape/incest exception and the draconian nature of potential punishment for an abortionist.

The Alabama and other state laws come on the heels of several liberal jurisdictions, most notably New York, recently passing legislation that expands abortion rights beyond the scope provided in Roe (and arguably through the entire nine month pregnancy).  They also follow Virginia Governor Ralph Northam’s (whose year has been rather rough) comments that seemed to indicate support for possible infanticide under the guise of “abortion rights.”

Moving back to Alabama and other states severely curtailing abortion rights, these laws are virtually certain to be tested in the federal courts, where–citing to precedent from Roe and Casey–district and circuit court judges are expected to strike them down.  The proponents of the laws, however, apparently hope that recent composition changes at the Supreme Court (notably Anthony Kennedy being replaced by Brett Kavanaugh) will ultimately result in that body’s review of legislative rollbacks to Roe and an overturn of the Roe precedent itself.

Analyzing Roe from a legal standpoint, those attacking it possess a rather compelling position.  The decision, penned by Justice Harry Blackmun, constitutes more of a medical history on the practice of abortion and a sociological analysis of “unwanted” fetuses than it does a Constitutional legal opinion.  Moreover, the Blackmun majority’s ultimate holding is founded upon a thinly-detailed, unstated “right to privacy” in the Fourteenth Amendment to the Constitution, a right to privacy that authorizes a pregnant woman and her physician to make an abortion decision through the first trimester (and provides the government a countervailing interest in regulating the practice of abortion in a manner reasonably related to maternal health during the second trimester, when the mother also retains her right of privacy to terminate her pregnancy).  As a practical matter, this ruling has effectively guaranteed a woman’s right to an elective abortion for most, if not all, of the first six months of pregnancy.

Of course, the Fourteenth Amendment, adopted in 1868 to ensure full citizenship and equal protection under the law for former slaves, has nothing to do with a right to privacy.  The only clause in this Amendment which could even arguably relate to a “right to privacy” is found in Section 1 and reads as follows: “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.”  Bottom line, it does not take a legal scholar to identify that not only is an issue like abortion not contemplated by this Amendment but that the discussion of a so-called “right to privacy” also remains non-existent.  Simply put, there is no actual Constitutional authority for the “right” upon which abortion rights themselves are founded.

Arguably more important in practical effect than the lack of a legal foundation for Roe v. Wade, this decision truncated the political debate about abortion rights in its nascent stages.  When Roe was decided, a few states (first Hawaii in 1970 and later New York, Alaska, and Washington) had legalized abortion in some form.  However, the issue of abortion access was settled without a political debate (under the guise of being a “Constitutionally-protected right”) in the other 46 states to which the ruling applied.  Effectively, the debate about competing interests between the life of a fetus and the rights of a pregnant woman was entirely decided in one fell swoop, without the involvement of electoral politics and the allowance of both sides to present their case to the citizenry.

Forty-six years later, abortion remains at the forefront of American politics, with extraordinary passion on both sides of the debate.*  The side which “lost” Roe remains embittered that a defeat was imposed on it by the judiciary without having been given the opportunity to present their political case to their fellow Americans.  The side which “won” clings to a judicial decision that allows them to keep the matter outside of the electoral arena.  Without a valid Constitutional foundation, Roe (and its progeny Casey) should not stand, and the issue of abortion rights should be put to the voters.  While various states are likely to come to different conclusions on the issue of abortion access, it is quite possible that voters across the country may well come to a middle ground on the most hot button topic in politics, with neither the Alabama nor New York positions prevailing.

*In contrast to the abortion debate, the Supreme Court’s decision to legalize gay marriage in Obergfell v. Hodges, premised upon an equal protection argument arising from the actual language of the Fourteenth Amendment discussed above, barely registers as nationally controversial just a few years after being rendered.

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