Roe v. Wade was appealed to the United States Supreme Court from a Texas State Court where Texas law held abortion was illegal except to save a woman’s life and only if accompanied by a physician’s referral. Plaintiff Roe sought an abortion in violation of the law, claiming the law abridged her right to privacy, was vague and that her right to privacy was a natural right, referred to in the Constitution in Amendments I, II, IV, IX and XIV. The Supreme Court agreed with Plaintiff’s right to privacy, and the referrals. Furthermore, the Supreme Court upheld those rights in all cases during the first trimester of pregnancy in all States and during the second and third trimester, subject to other specific conditions. Roe was reaffirmed in Planned Parenthood v. Casey in respect of both of Roe’s holdings among a splintered three-decision plurality. Roe has been claimed to be “settled law” on the basis that it has double precedent by the Supreme Court (in both Roe and Casey).
Without doubt, abortion has been the most toxic political question during the last forty-nine years since Roe was originally decided. On account of the toxic nature of the subject, it has been polled, opined frequently by legal scholars, and reported by journalists in mass market media. Seldom is the subject of Roe reported as “inconclusive” in any publications, thus affirming that the subject is polarizing among the public and the media. The most influential commentary on Roe has come from the late Ruth Bader Ginsburg’s speeches and writings offered prior to her appointment and confirmation to the Supreme Court in which she expressed misgivings about Roe, not requiring reversal, but better decisions.
Legal reasoning needs to be durable. To opine that a case is “settled,” as has been claimed by a substantial numbers of members of Congress, does not make it so. The claim that Roe is “settled law” is more of a red flag, than a conclusion about Roe. It is an indication there is still much to talk about, and that points to “unsettlement.” Such has been the long history of Roe. The Three-part opinion in Casey explicitly expresses misgivings among nine justices; there are many differences among them, and lack of conviction for Roe – a situation that merits the term “unsettled.” The Supreme Court must continue to see Roe as having at least some wrongly decided elements needing better case law going forward. The fact that the Court has granted certiorari several times is interpreted as the court’s belief it is unsettled and needs to become settled, one way or another.
What is wrong with Roe as it stands? The case for Roe depends on a legal claim that a woman’s right to an abortion is a Natural Right, such as referred to in the Declaration of Independence. There is, I believe, closure on that understanding. But, there is no Constitutional Amendment or case law describing and enshrining a natural right in Constitutional law. Roe could become that result in the present instance, if the Supreme Court makes it so. Roe’s defenders claim that the right to an abortion is already“settled constitutionally.” Where is it so settled? It is claimed to be a consequence of a “right to privacy.” That appears to be of dubious merit; a result of grabbing the best available word, and thus “privacy” was the default.
What were Justice Ginsburg’s misgivings about Roe? First, it must be explained that she was not a justice on the Supreme Court, so she was free to speak about her long held belief that women’s rights needed a secure right to abortion. Chief among here misgivings were that Chief Justice Warren picked the wrong case to settle abortion. Second, making the Fourteenth Amendment’s “due process clause” was a poor choice for two reasons: The “equal protection of the law” was a better choice to position the findings and adopt the reason that it was solely applicable to women in the present instance. Third, it was totally unnecessary that the court applied the ruling to all the states. It would have been better to incrementally change the law among more than one case, which would have been the path that would better build consensus. Finally, in summation, Justice Ginsburg believed the Roe case was rushed, and the “right to privacy” as the claimed “civil right” to encompass abortion was an outlier as a result.
Publiustoo.com June 14, 2022
