Roe v. Wade decision reconsidered

Constitutionality of the decision is dubious

“ONE OF THE most curious things about ‘Roe’ is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Sound like the complaining of an extreme right-wing conservative still upset about things that happened 30 years ago? Guess again.

Try Laurence Tribe, the eminent Harvard law professor and long time supporter of liberal causes.

But he’s not alone.

Even pro-choice Yale law Professor Ely Hart and one of the most liberal justices on the court, Ruth Bader Ginsburg, have been critical.

Why the opposition from people so fully committed to abortion rights? The objections of Tribe and other pro-abortion supporters concern Roe itself.

Indeed, it seems a necessary pretext to say that opposition to Roe is not tantamount to opposition to abortion itself. The question of constitutionality is just that: one of whether Roe v. Wade has basis in the U.S. Constitution.

Similarly, questions as to the legality or soundness of the science or history of Roe — all tests it seems to fail — are just that: they are subject to legal reasoning, scientific inquiry and appropriate evaluations of the case’s historicity.

An honest discussion about, for example, the constitutionality of Roe is nearly impossible: for inevitably arguments as to the moral, ethical, social, economic, et al., merits of legal abortion — all of which are irrelevant as to Roe’s constitutional status — are inevitably advanced.

It must therefore be noted, again, that a number of opponents of “Roe” are staunchly in support of abortion and the lauded “women’s right to choose.”

Of particular significance is Edward Lazarus, a former clerk to Roe’s author, Justice Harry Blackmun, and someone “utterly committed to the right to choose,” who made clear the constitutionality of Roe: “… in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”

Nor is it equivalent to making abortion illegal. Overturning Roe would simply leave the abortion question to the legislative branches, both federal and state, in accordance with the Constitution, namely the 10th and 14th amendments.

This is of course where the responsibility, according to the Constitution, should have been from the beginning.

Indeed, the court makes clear it’s view as to the basis of the right to an abortion: “This right of privacy, whether it be founded in the 14th amendment’s concept of personal liberty and restriction upon state actions, as we feel it is, or, as the District Court determined, in the 9th amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

What is most troublesome about Blackmun’s analysis is that he seems to have completely ignored the rest of the amendment he invokes as the basis for the so-called “right to privacy.”

The due process clause is only section one of the five-section amendment.

Section five makes it explicitly clear where the responsibility of legislation and enforcement of due process regulations lies: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

That Blackmun would give deference to only the portion of the amendment that supports his conclusions represents — at bare minimum — suspicious Constitutional law.

Additionally, Roe feigns neutrality on the question of the humanity of the unborn, though it clearly isn’t.
Blackmun writes, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

This is highly problematic for this is precisely what it did. The parallel a Texas law and philosophy professor proposes between Roe and Dred Scott assists in illustrating this error in logic.

Suppose that Justice Taney, in the majority opinion in Dred Scott v. Sanford (1857), were to write, “We need not resolve the difficult question of whether slaves are human persons. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

Would the court have been “neutral” in making this decision?

Clearly not. In allowing for slavery, the court very clearly is adjudicating as to the humanity of slaves.

That the 14th amendment, an amendment made primarily in response to the problem of slavery — which denied the humanity of slaves — was (and is) also used to deny the humanity of the unborn, is bitterly ironic.

Regardless of your views on abortion, I wonder if it’s time to take another look at Roe.

H.E. W. Everett is junior at Fresno State majoring in classics and philosophy.

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