Overturn Roe v. Wade?

For quite some time now I’ve had my doubts about the way Roe v. Wade was decided.  While I’ve always supported the ultimate outcome of the decision, I’ve questioned the legal reasoning behind it.  I think the vast majority of Americans are in agreement that women, and men too for that matter, have a “right to privacy”.  The only problem with Roe v. Wade is that it cites this right to privacy as the legal justification for the decision.  Unfortunately, there is no mention of that specific right in the Constitution itself.  Whether we like it or not, we must come to understand that the majority of that Court fabricated that right in order to justify their ultimate decision.  They relied on future Courts to uphold that decision on the basis of stare decisis.  But now we are faced with a much more conservative Court that may be ready, willing and able to overturn that decision.

No, I’m not a pro-lifer.  I just believe that the Supreme Court in 1973 missed the central issue in the debate over abortion.  The fundamental question that laws against abortion presents us with is: When does human life begin?  Pro-lifers contend that human life begins at the very moment of conception.  Based on that assumption, the pro-life position reasons that any attempt to end the life of the unborn is tantamount to murder.  If this were merely the subject of debate in a theology class, I’d be inclined to take the pro-life position.  But the legal debate over the subject of abortion is taking place in our court system and ultimately will be decided by the Supreme Court.  As such, the question about the beginning of life has to be decided on constitutional grounds, not religious, which is why I ultimately find myself on the pro-choice side.

If the justification for criminalizing abortion is based on a religious principle that means that criminalizing abortion represents an attempt to impose a religious belief on people who do not believe, which seems to me to violate the First Amendment separation of church and state.  From that point of view, basing the pro-choice legal position on the First Amendment makes for a much stronger argument than having it rest on a fictionalized “right of privacy”.

Ultimately, I believe the question of abortion should be evaluated as a matter of public policy, or at the very least, as a matter of public health.  Law should be based on what is best for the common good.  Therefore, the central question surrounding abortion is whether or not the state is ultimately benefitted by forcing women to bring unwanted children into the world, which is precisely what criminalizing abortion does.  I think we all know and understand that raising children requires an incredible amount of commitment on the part of the parent.  Therefore, it seems to me obvious that a woman who is even contemplating an abortion lacks the necessary commitment to that as yet unborn child.  This commitment will require a tremendous amount of self-sacrifice.  Someone who sees the prospect of bringing a baby into the world as a inconvenience cannot possibly be willing to make that kind of sacrifice.  Therefore, as a matter of public policy, it just doesn’t make any sense to force an unwilling mother to bring an unwanted baby to term.

Criminalizing abortion is also a matter of public health.  Just because performing such a procedure is against the law doesn’t mean that the desire to end an unwanted pregnancy will simply disappear.  More to the point, in a situation where a woman wants to terminate her pregnancy, she will always be able to find someone willing to help her do it, especially if the price is right.  Hopefully such people are qualified and capable of performing an abortion safely.  But we know from experience that this is not always the case.  To criminalize the procedure will bring us back to the age of back alley abortions for women who cannot afford someone who has the expertise to provide competent medical care.  Thus criminalizing abortion will have public health consequences, consequences that are too often fatal for both mother and child.

Yes, abortion in the eyes of God is a sin both for the person performing it and for the woman who submits herself to the procedure.  From a religious point of view this means that these people are placing their immortal souls in jeopardy.  The question with respect to criminalizing abortion is whether or not it is the government’s job to protect an individual’s immortal soul.  I believe such a decision ultimately lies with the individual.  The reality is that even if abortion is a sin in the eyes of Almighty God, God can forgive such a sin.  After all, God sent His only Son to this earth in order to forgive sin.  But more to the point, protecting the individual’s immortal soul is not the government’s job, that is a religious, moral or ethical matter which is between an individual and his or her Creator.  As important as it may be to protect individuals from their worst instincts, instincts which may endanger their spiritual well-being, it is not the job of government to do so.  Therefore, it seems to me, imposing a religious belief or principle within the context of the Constitution makes for bad law as it violates the First Amendment right of freedom of religion.  In this case it is much more important for the Supreme Court to provide freedom FROM religion rather than freedom OF religion.

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  • I think you are undervaluing the constitutional right to privacy. It is a recognition of the fundamental principle of our constitution that the government cannot intrude into our private lives without a compelling interest in doing so. It goes beyond freedom of religion under the First Amendment. Using the right to privacy, the Supreme Court held in 1923 in Meyer v. Nebraska that the state of Nebraska had no business prohibiting the teaching of German. In Pierce v. Society of Sisters in 1925, the court said the state government cannot compel children to attend public schools. Griswold v. Connecticut in 1965 held that the state cannot prohibit the possession of contraceptives. Stanley v. Georgia in 1969 dealt with criminalizing possession of pornography by adults. Since Roe v. Wade was decided the Supreme Court had applied the right to privacy in five other major decisions, including Lawrence v. Texas in 2003 striking down laws criminalizing sodomy among consenting adults.

    You may try to explain some of these decisions on freedom of religion grounds, but to explain them all with it you would have to distort the First Amendment beyond any recognizable basis supported by the text or history of the amendment..

  • Also, the question is no longer Roe v. Wade, which legal sources say was superseded by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which basically means that Sandra Day O'Connor wrote the current jurisprudence. Although the yahoos in like Alabama think that the current Supreme Court will overrule Roe, the recent decision in the Indiana case (Box v. Planned Parenthood) followed the O'Connor formulation (except for J. Thomas, who somehow has found a voice without Scalia).

    In addition to the precedents jnorto cited, this line of reasoning was also followed in Lawrence vs. Texas, 539 U.S. 558 (2003), which, in throwing out a sodomy conviction, essentially said that what adults do in private with their consent is none of the government's business, and Obergefell v. Hodges (2015), striking down the ban on same sex marriage. Hence, it would take quite a leap by the Yalies on the court to repudiate that much legal reasoning.

  • Well reasoned and well argued. A couple of points: I'm pro-life, but while I believe that "life" begins at conception, I'm not in favor of defining personhood at that moment. You're right that the central question involves the rights of a person. At some point (viability perhaps?) the fetus (a human being) should be accorded some human rights, such as a right to life and a right to protection from criminal assault (when the mother is attacked, for example). Many pro-lifers agree with the majority of Americans who occupy the middle ground: no absolute ban of abortions and no absolute right to abortion for any reason. To me, at some point in pregnancy, it becomes a question of a balance of rights. It's were the discussion should start.

  • In reply to Dennis Byrne:

    Seems like you should move to Georgia, as obviously you have issues living in Illinois. It can use your patronage, as the producers of "Made in Georgia" productions are starting a boycott.

    Better go before the Obama Library cuts off your access to the south, although you can take I-294 to I-65 to I-24 to I-75. You can pass your Old Kentucky Home on the way.

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