By Paul Stark
On January 22, 1973, the U.S. Supreme Court decided Roe v. Wade and its companion case, Doe v. Bolton. In a 7-2 decision, the Court ruled that abortion must be permitted for any reason before fetal viability—and that it must be permitted for “health” reasons, broadly defined in Doe (so as to encompass virtually any reason), all the way until birth. Roe and Doe essentially legalized abortion on demand nationwide.
The New York Times proclaimed the verdict “a historic resolution of a fiercely controversial issue.” But now, 41 years later, abortion is as unresolved and controversial as ever. Three intractable problems will continue to plague the Court and its abortion jurisprudence until the day when, finally, Roe is overturned.
First, and most importantly, the outcome of Roe is fundamentally harmful and unjust. Why? The facts of biology show that the human embryo or fetus (the being whose life is ended in abortion) is a distinct and living human organism at the earliest stages of development. This was established long before 1973, though subsequent scientific and technological advances have greatly improved our knowledge of life before birth. As Dr. Horatio R. Storer explained in a book published in 1866, “Physicians have now arrived at the unanimous opinion that the foetus in utero is alive from the very moment of conception.”
Justice requires that the law protect the equal dignity and basic rights of every member of the human family—irrespective of age, size, stage of development, condition of dependency, and the desires and decisions of others. This principle of human equality, affirmed in the Declaration of Independence and the United Nations’ Universal Declaration of Human Rights, is the moral crux of western civilization.
But the Roe Court ruled, to the contrary, that a particular class of innocent human beings (the unborn) must be excluded from the protection of the law and allowed to be dismembered and killed at the discretion of others. “The right created by the Supreme Court in Roe,” observes University of St. Thomas law professor Michael Stokes Paulsen, “is a constitutional right of some human beings to kill other human beings.”
After Roe, the incidence of abortion rose dramatically, quickly topping one million abortions per year and peaking at 1.6 million in 1990 before gradually declining to 1.2 million. Under the Roe regime, abortion is the leading cause of human death. Over 56 million human beings have now been legally killed in the United States. And abortion has significantly and detrimentally impacted the health and well-being of many women (and men). The moral gravity and scale of this injustice exceed that of any other issue or concern in American society today.
The second problem with Roe is that it is legally, constitutionally mistaken. Justice Harry Blackmun’s majority opinion claimed that the “liberty” protected by the Due Process Clause of the Fourteenth Amendment includes a “right of privacy” that is “broad enough to encompass” a right to abortion. “As a constitutional argument,” notes University of Pennsylvania law professor Kermit Roosevelt (who favors legalized abortion), “Roe is barely coherent. The Court pulled its fundamental right to choose more or less from the constitutional ether.”
The right alleged in Roe is blatantly contradicted by the history of abortion law in the United States. Ratification of the Fourteenth Amendment roughly coincided with enactment of a wave of state laws prohibiting abortion from conception with the primary aim (according to clear and abundant historical evidence) of protecting unborn children. Most of these statutes were already on the books by the time the Fourteenth Amendment was adopted in 1868, and many of them remained unchanged until Roe struck them down more than a century later.
“To reach its result,” Justice William Rehnquist thus concluded in his dissenting opinion, “the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”
Blackmun’s reasoning was ridiculous, his facts erroneous, his key historical claims demonstrably false. The process behind the decision was appallingly shoddy. Roe and Doe constituted a full-blown exercise in policy-making—the arbitrary (untethered to the Constitution) invention of a new nationwide abortion policy to reflect the personal preferences of a majority of the justices.
Even pro-choice legal experts don’t try to defend Roe on its merits. “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” wrote the eminent constitutional scholar and Yale law professor John Hart Ely. “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Since 1973 the Court has modified Roe while stubbornly clinging to its “essential holding.” But the Court’s abortion jurisprudence cannot forever withstand the weight of fact and reason.
Third, Roe is undemocratic. It struck down the democratically-decided abortion laws of all 50 states and imposed a nationwide policy of abortion on demand, whether the people like it or not. Because the Court lacked any constitutional warrant for this move, it usurped the rightful authority of the elected branches of government to determine abortion policy.
The radical extent of the Roe regime was not and has never been consistent with public opinion, which favors substantial legal limits on abortion. (Polling questions on Roe are often inaccurate, and ignorance of the extent of the decision is widespread). Roe has disenfranchised millions and millions of Americans, fostering divisive cultural and political battles. These Americans will not rest while Roe and abortion on demand persist. They want to have a say. The Court decided they could have none.
Overturning Roe would not make abortion illegal nationwide. It would return the question of abortion policy back to the people and their elected representatives, where it had been for almost 200 years, and where it always belonged.
So these are the intractable problems of Roe v. Wade. The Supreme Court abused the Constitution to usurp the authority of the people by imposing a gravely unjust policy with breathtakingly disastrous results.
Unjust. Unconstitutional. Undemocratic. Together, these problems will lead, eventually, to Roe’s collapse.
Editor’s note. Mr. Stark is Communications Associate for Minnesota Citizens Concerned for Life, NRLC’s state affiliate.