Turning the Constitution into an Old Dead Document: A Review of the Overturn of Roe v. Wade

With Friday June 27th’s ruling to overturn Roe v. Wade, I was surprised to hear how little discussion was spent on the exact argument used. Surely to most people the legal justifications were far less significant than the simple fact of its undoing, but still its grounds matter. There is an interesting mindset that lies behind its reversal.

“Jane Roe” was the pseudonym adopted by Norma McCorvey in 1969 when when she sought to abort the pregnancy of what would have been her third child. She lived in Texas, which allowed abortion only when pregnancy was a threat to the life of the mother. McCorvey and her two female lawyers brought suite against the state by proxy through the local district attorney, Henry Wade. Their challenge to the antiabortion law was upheld by the District Court’s three judges and on the case went to the fateful day, January 22, 1973, when the Supreme Court ruled in her favor: she had a certain right to abort her pregnancy. Meanwhile, McCorvey had had her baby and given it up for adoption.

THE NEW CONSERVATIVE BLOCK of The US Supreme Court

On that Friday, Justice Samuel Alito wrote for the majority in overturning the prior decision. He was joined by Trump appointees Kavanaugh, Barrett and Gorsuch. Justice Thomas concurred and wrote his own opinion that was more radical than Alito’s, contending that other ‘rights’ based in the 14th Due Process Amendment could also be in jeopardy. Chief Justice John Roberts voted with the majority but in his opinion he sought to uphold the Mississippi abortion law in question (banning abortions at 15 weeks except for medical emergency) but without overturning Roe.

The crucial point in the Roe decision was the 1973 court’s ruling that a woman had a right to privacy concerning her own body, at least to a point. This right was supposedly based in some combination of amendments and was not explicitly stated in any one of them. Alito, himself, reviews these amendments and the possible combinations, and overall finds them lacking and writes of the Roe decision: “its reasoning was exceptionally weak.” The amendments in question are One, Four, Five, Nine and Fourteen.

The First Amendment has little to do with abortion, other than help to establish some clear limits to government action. An American government cannot be in the Religion Business. It cannot push its own form of religion and it cannot restrict the religious practices of others. Then similarly, the Constitution asserts the broader principle that Government cannot tell people what to say, write and when they can gather together. These limitations do provide a clear background concerning the character of “liberty,” in general.

The Fourth Amendment seems to me to be very relevant. It declares “the right of the people to be secure in their persons, houses, papers and effects,” Granted, its emphasis is on protection from governmental action (“unreasonable searches and seizures,” and the need for a warrant based on “probable cause”); not protection for your acts in your own house or body, but surely the one implies the other. The Fourth seems to declare a Right to Privacy in certain places and situations. This is not how the court’s majority reads it, or at least in terms of abortion. Most damming, they contend that the Constitution’s lack of explicit reference to abortion in any sense, puts an abortion right in grave doubt.

That the lack of explicit mention, or any clear boundaries, of a right has long been a sticking point for Constitutional Law. This problem surfaces repeatedly.  Conservatives have leaped upon the band wagon of “original intent” ( see NYTimes, 6/28),  that the Constitution should be interpreted in a stricter conformity to its exact words and historical context.

For example, all the state legislatures that ratified the Constitution were filled with men, and they perfectly knew well, and agreed with, the Declaration of Independence, that “All men are created equal;” yet “men” was interpreted literally at the time to exclude women from voting and other opportunities, and exclude men of different races from civic participation and protections.  Where in the Constitution is “women” or “race” mentioned? Yet, we almost unanimously agree, now, that gender and race are irrelevant to political rights, and have amended and interpreted the Constitution to say so.

The Supreme Court proved its reason for being and its equality with the other branches of government, early on, by the necessity to interpret the Constitution.  It was not perfectly clear and especially in reference to new circumstances.  Gun law is a good example of the latter.  Automatic weapons were not in existence in 1788.  It took a person many seconds and even minutes to reload a rifle or hand gun after a single shot. Today, we have an abundance of mass gun-murder and the mass murderer in Dayton Ohio, for example, fired 41 times in 19 seconds to kill 9 people and wound 17.. Would the framers of the Constitution have written the Second Amendment today, as is?

To invoke “the original intent” of a document has value, but is clearly not decisive in the above cases.  Conservatives invoke this strategy selectively and arbitrarily to suit their wishes. They risk killing the relevance to modern times of this historically great document—The US Constitution.  Below, the 14th Amendment will be discussed; it too makes a broad reference to “liberty” and one which some “original intent” proponents contend should be held to mean what liberties were acknowledged in 1868, the year it was ratified! Now there is an ossified contention but lets return to the abortion issue of today and its specific grounds in American law.

The Fifth and Ninth Amendments do not seem to me to obviously help the pro-choice position, and Alito declares that it is generally agreed, by judges that support ‘rights’ not specifically mentioned in the Constitution, that the Fourteenth “Due Process” Amendment “does the work.” “Nor shall any State deprive any person of life, liberty, or property, without due process of law,” states the 14th, but Alito quickly dismisses the “due process protection” as not pertinent in this case. The prevention of abortion is not discrimination against women—no “invidiously discriminatory animus” against women exists in these cases writes Alito, quoting a previous lower court ruling. Therefore, no special scrutiny is necessary based on unfair or arbitrary treatment of some citizens, i.e. women. And this is the opinion of the majority of Justices, no matter how firmly this is disputed by numerous feminists. For example, Gloria Steinem has has stated, “the very definition of patriarchy is trying to control women and birth giving.”

Alito then turns to dismissing Roe on various grounds. One, no explicit mention of abortion in the Constitution. Two, no legal history or common law support for it before Roe (which to my knowledge is true, but misses the point that many women felt the need to obtain abortions in spite of its illegality). And three, that a right not mentioned in the Constitution’s previously established rights must be “essential to our scheme of ordered liberty,” a phrase used in previous cases concerning “rights” and possible “rights.”

“Constitutional analysis must begin with ‘the language of the instrument,” declares Alito quoting a ruling from 1824. The Constitution, “the instrument” in question, makes no mention at all of abortion. The majority of these conservative Justices then conclude that Roe was “an exercise in raw judicial power” as contended by Justice Byron White in this dissenting opinion to the 1973 ruling. Alito declares that Roe was “wrong from the beginning.”

And indeed, there is something interesting to this particular point. The Roe decision was like a detailed “piece of legislation.” From not a single direct reference in the Constitution, Justice Harry Blackmun, and his concurring six justices, created an elaborate abortion compromise in their original Roe v. Wade decision.

This was Roe’s Trimester System. A woman had the right to privacy and control of her own body up to the point of the fetus’ “viability.” At that point on, roughly the end of the second trimester, “the State had a legitimate interest in protecting ‘prenatal life,” writes Alito in summarizing Roe.

But here was part of the instability of Roe. Fetal viability has changed due to medical advances—coming sooner than the end of the second trimester, 21 weeks—and increased scientific knowledge has made us more aware of fetal development before viability. “Pro-life” proponents (as they are often called) seized upon these changes to push for decreased opportunity for an abortion. Ohio law, as it now stands in the wake of Roe’s reversal, is that abortion is illegal upon the ability to hear a heart beat (at approximately 6 weeks) and a new law has been proposed to declare conception as the moment of legal protection for what these believers call “persons.”

The final legal milestone preceding June 27th’s reversal, took place in 1992 in Planned Parenthood v. Casey (known as “Casey”). The state of Pennsylvania had passed a new law requiring a woman to under go a waiting period, notify her spouse, or have parental consent (if a minor) before having an abortion. The Supreme Court ruled in favor of Planned Parenthood in general, but did uphold the waiting period and parental notification. The new law placed “an undue burden” upon the woman’s right to an abortion the court ruled in a divided decision. A woman has this right to abortion by the 14th Amendment’s “due process” clause, they declared, and supplemented the viability standard with this clarification of “an undue burden” can not be placed on a woman seeking to enact her right. Roe’s trimester system was dismissed, as no longer relevant.

Casey is a difficult decision to understand. The five concurring judges agreed in general principle that Roe should be upheld but could not agree on specific reasons why. The four dissenting judges now for the first time questioned Roe in its entirety. This led to a new significance in this case for the legal principle called stare decisis (as in star-then long a, then the root of our word decision with a long i in the middle)—“to stand by things decided.” The three judges writing the plurality opinion relied heavily on this principle believing that The Supreme Court, and laws themselves, need stability. They could not always sway according to political fashion and varying trends, without losing respect. These three justices voted to uphold Roe on the basis of its character as an achieved precedent and as an established part of American’s sense of liberty. “An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society,” they wrote in their decision.

(Souter, O’Connor and Kennedy wrote the plurality opinion in Casey. All three were appointed by Republican presidents and voted to uphold Roe partly on the basis that it had become an ingrained element in our society and a part of what had come to be expected as a basic human freedom.)

But for Alito and four of the five concurring Justices did not see it this way. Chief Justice Roberts wrote his own opinion trying to form a middle ground that upheld the the new Mississippi law (banning abortion after 15 weeks) and also refusing to rule on Roe, but this path was accepted by no other justice. Liberal Justices Sotomayor, Kagan and Breyer maintained the law unconstitutional as an undue burden on a women’s right to abort.

Of course, the new decision striking down Roe does not make abortion illegal. It turns the issue back to the individual states to decide their own law. Alito contends this is where the issue properly belongs: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” He approvingly quotes Justice Scalia’s dissenting opinion in Casey: ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” 

And thus the ruling was decided.

And now the war continues on many different fronts. Ironically, Justice Alito in his decision criticizes the court’s previous rulings for not resolving the issue of abortion. He wrote: “far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” And The High Court in the Case ruling also referred to this role of the court as ultimate arbitrator. The plurality decision contended, “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution” (my emphasis).

In my opinion this reversal of Roe will “enflame” and “deepen” conflict. Already here in Ohio, the Columbus City Attorney (a Democrat) has pledged to not prosecute abortion cases under the new law. Small towns, without abortion clinics in them, are attempting to enact abortion bans over the objections of many of their residents. And a 10 year old girl, raped and impregnated by a family friend, was forced to journey to Indiana with her mother to obtain an abortion.

The court should have upheld Roe but also allowed various states to modify the abortion right as they saw fit. A decision similar to Robert’s opinion, or the three liberal justices, would have done much to dampen the flames of controversy. The Supreme Court has ample basis to insist upon a basic abortion right based on a woman’s right to privacy; it should have held that line! States that wish to limit that window of privacy should be given that right up to the point that it infringes upon the woman’s privacy and places “an undue burden” on her ability to enact her right. For example, Ohio’s current 6 weak “Heartbeat Bill” should be unconstitutional; 6 weeks is too early for many women to realize and act. The newly proposed Conception Bill is outrageous. As my moderately conservative Republican brother-in-law stated, “to insist that a fetus shortly after conception is a person, that’s just your religious opinion!”

“Time and memory are the true artists; They remould reality nearer to the hearts desire.”

John Dewey

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