Indefensible Roe – The Legal Track

The justices as legislators experiment has proven a disaster for the Court and the country.

As that great bulwark of honesty Buddy the elf would say, Roe “sit[s] on a throne of lies.” This series will expose many of them in the spiritual, scientific, cultural, moral, and policy realm. But we start this endeavor with the most pressing deception as far as it concerns the U.S. Supreme Court’s upcoming considerations of the Dobbs v. Whole Women’s Health Organization case: the legal one.

It is a plain statement of fact that the U.S. Constitution has nothing to say about abortion. Zero, zip, zilch, nada. In fact, the fallacy of Roe is so deep, that the Court did not just invent the right to abortion, it actually based its decision to invent it on another “right” that appears nowhere in the Constitution. In an earlier case (Griswold v. Connecticut), the Court had “recognized” a new right to privacy that it now magically expanded to cover the right to abortions.

The Court is not even sure where this right to privacy comes from; it recognizes different theories. But wherever it came from, it is surely meant to cover abortion; it promises us. Here is how Justice Harry Blackmun, who shamefully wrote the Roe majority opinion, put it:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

And just like that, 185 years after the Constitution was officially ratified on June 21, 1788, the Court gives birth to a new right to abortion with no legal underpinning whatsoever. Here is how Justice Byron White put it in his dissent in Doe v. Bolton, Roe’s companion case:

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

This is, simply put, judicial tyranny.

But those foundational lies are just the beginning of the legal birth pains for the Court when it comes to this issue. For, to establish its preferred policy preferences masqueraded as law, it was forced to discuss several revealing matters.

The first was the personhood of the baby in the womb. The Court was compelled to deny it, of course, for it recognized that, “If this suggestion of personhood is established, the [pro-abortion] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.”

Missing the irony, the Court explains that “The Constitution does not define ‘person’ in so many words.” Having performed the most violent of exercises against the text of the Constitution, it now conveniently purports to show restraint in denying the baby’s humanity. God forbid they read that into the Constitution.

I am hopeful that, whatever your view of abortion, you can see the glaring problems with such flagrant manipulation of the constitutional text. If the Court can do this, it can do whatever it wants.

Even liberal feminist icon Justice Ruth Bader Ginsburg recognized the Court exceeded its authority in Roe. She famously wrote:

Roe v. Wade… invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators' court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures "toward liberalization of abortion statutes."

It is worth remembering that when we are talking about “the Court” doing something, we are simply talking about nine unelected judges. These nine men, in the case of Roe, unilaterally invalidated most abortion laws by virtually amending the Constitution to say something it was never intended to say. They left “we the people” without a voice in one of the most sensitive matters affecting our lives. This is fundamentally antithetical to our constitutional structure.

Second, the Court had to admit that “the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman,” and that it also “has still another important and legitimate interest in protecting the potentiality of human life.”

Confronted now with having to balance these interests, namely the invented right to an abortion versus the legitimate interest of the life of babies and the health of mothers, the Court endeavors to leave its judicial role behind (distorted as it already was) to venture into blatant policymaking by establishing a trimester system delineating when the state could attempt to regulate abortion.

It would later, embarrassingly, have to abandon its initial trimester policy and invent new “legislation” based on viability and asking if any law restricting abortion places an “undue burden” on a woman seeking an abortion.

As you might expect, this has failed women, too. The justices as legislators experiment has proven a disaster for the Court and the country. It is indefensible as a matter of constitutional law, and it is way past time the Court owns up to it and corrects its course.

We will unpack this more next time as we take a look at the public policy track of the Indefensible Roe.