Is Roe v. Wade Settled Law?

In the continuing alleged “war on women,” the Democrats are attempting to motivate/scare women voters into siding with their feminist-activist agenda and beliefs. As always, abortion and “reproductive rights” are the centerpiece of their talking points as they portray Republicans as trying to restrict a “fundamental right” of women- that of whether or whether not to have children. However, the starting point- Roe v. Wade- is woefully short on constitutional jurisprudence that it has made the subject the controversy it is today. After reading and rereading the decision on several occasions, one is struck with the fact that it would be better viewed as some doctoral thesis on the history of abortion rather than a landmark Supreme Court decision. There is more constitutional truth in decisions like Dred Scott and Plessy v. Ferguson than in the Roe decision. Not that either of those decisions were necessarily morally correct, but there was greater support for them in the Constitution than there is the alleged right to unfettered abortion.

If Roe v. Wade were “settled law,” then there would be no discussion today. Take the example of Brown v. Board of Education as an example. That decision is somewhat less (yet more) devoid of constitutional jurisprudence. Brown relied heavily on sociological and psychological studies to reach the conclusion that segregation in education caused harmful effects on minority students. Despite the initial reaction against that decision in parts of the country, it is a decision that we have come to live with and generally accept in principle, if not in practice (forced desegregation). However, we cannot say the same of Roe v. Wade. There is no vibrant pro-segregation constituency out there, but there clearly are vibrant pro-life and pro-choice constituencies in the population today forty years after Roe v. Wade. This alone, like Plessy v. Ferguson before it, indicates that abortion and specifically Roe v. Wade is not settled law.

Liberals, Democrats and feminists (usually one and the same) like to portray an America without Roe as a vast wasteland of back alley abortions and wire hangers. They claim that women, especially poor, young women would resort to dangerous abortions that threatened their health or lives. However, at the same time, they rail against state laws that would force abortions into licensed surgical units rather than a clinic or doctor’s office. When laws are proposed to enhance the woman’s knowledge of the procedure, it is portrayed as a back door restriction on abortion. Liberals and feminists apparently care more about product safety and liability than they do about women making informed decisions regarding abortion.

The fact is that prior to the Roe decision, attitudes were changing in America regarding abortion and that state laws restricting abortion were falling incrementally. This was achieved through legislative action, not judicial fiat. Accordingly, these decisions by legislatures hold greater weight than a controversial 5-4 Supreme Court decision, a fact not lost on such a liberal icon as Ruth Bader Ginsberg, herself a women’s rights litigator before her judicial career.

As further proof that Roe is not necessarily settled law, its basic trimester approach has essentially been abandoned in favor of the “undue burden” approach formulated by Sandra Day O’Connor and generally adopted in Planned Parenthood v. Casey. The pro-choice movement has portrayed this as a back door way for states to restrict a woman’s right to abortion by putting up roadblocks that have the practical effect of absolute restriction. However, how can a state by passing a law that requires truly informed consent taking everything into account or ensuring that the procedure is performed in as safe an environment as possible be considered a restriction? We have more onerous truth-in-lending laws and securities laws regarding informed decisions than we do with regards to these alleged “restrictions” postulated by the pro-choice voices.

As Ginsberg has ironically suggested,a federalism approach to abortion is the better approach and allow the chips to fall where they may. According to the Center for Reproductive Rights, twenty states would show no change with respect to the availability of abortion in their states while 21 would likely see some restrictions enacted. In the remaining nine, the effect would be uncertain. It is doubtful the great abortion apocalypse the pro-choice crowd predicts would actually unfold. For example, no less a conservative state than Mississippi recently rejected a referendum stating life began at conception which would have had ramifications on abortion laws. Instead, both sides presented their views and the voters made the decision which is the way democracy is supposed to work. Obviously, the real result would be a patchwork of abortion laws that were not necessarily uniform from state to state, but that is really no better or worse than what currently exists. And in many other areas, there is no uniformity in laws from state to state, yet they exist.

Realizing that equal protection is an important consideration, the Federal government can ensure equal protection to some extent by simply getting out of the way. That is, no funding of Planned Parenthood and the like, no Hyde Amendment because the government would simply get out of that business altogether, and no restrictions on interstate travel to obtain an abortion. For example, if Iowa disallows abortion under certain circumstances a woman finds herself in, then traveling to neighboring Illinois to obtain the abortion should not be blocked by the Federal government. Simply put, the Federal government removes itself from the abortion debate one way or the other. Sometimes this will work to the advantage of the pro-life people and sometimes to the advantage of the pro-choice people.

The pro-choice people portray pro-life people as being against abortion in all circumstances which is patently false. I believe even the most ardent conservative would accept abortion in the cases of rape, incest, or if the mother’s life was in danger. What conservatives object to is the use of abortion as a means of birth control because the pregnancy happened to occur at an “inconvenient” time in that person’s life. Given the availability of contraception choices, that argument is pretty null and void. Quite frankly, I would rather Planned Parenthood provide contraception to the poor rather than abortions. At least then, the “Planned” makes greater sense.

I realize that missing in this conversation is when life begins. Obviously with advances in medical technology and neonatal care, the age of viability and trimester approach is no longer applicable, just as the dissent in Roe predicted. Over the years- the history of which can be obtained by reading the bulk of Roe- viability, quickening and a host of other criteria have been used and discarded. Should we take the easy step and assert that life begins at conception? I do not know the answer to that. Is it when a fetus can feel pain or when it has a functional central nervous system? These are issues that do not easily (it would appear) lend themselves to definitive resolution. At some point, a “decision” would have to be “made” so that the parameters of any resulting law would have a framework to define the state’s interest in regulation. But, I would put forth the theory that the people, through referendum or their elected officials, are better prepared to make those decisions, rather than judges.

I do not consider myself “”pro-life” in the vernacular sense of that phrase. Personally, I believe abortion should be made available to liberals lest we have future liberals (just a joke). That is, you will not find me holding signs outside abortion clinics or marching on Washington. By the same token, I do not believe that removing the question of abortion from the political branches and vesting its fate in the hands of the judiciary is the correct answer either. If the state were to place a Mississippi-like referendum on my state ballot, I would likely vote for it. However, I would accept the will of the majority of voters which is how a democracy or republic operates. Some may argue that putting such an issue up to a vote is inherently and morally wrong. But, any law, when one really thinks about it, is a statement of morality and moral choices one way or another. The end result is that Roe v. Wade is hardly settled law. It is constitutionally flawed.

It should not go unmentioned that the current US Supreme Court has not heard an abortion case in several years. This can be interpreted as Roberts either avoiding the issue or simply waiting for the correct vehicle to tackle the issue. There are a number of laws being contested in lower courts that may fit the latter choice. However, should Roe v. Wade be overruled in the future, it will not bring about the great debacle feminists predict just as predictions in other areas have not resulted in deleterious, practical results. It will simply return the issue to the political arena where it rightfully belonged all along.