Roe v. Wade

To understand what happened in the overturning of Roe v. Wade by the Supreme Court one needs to understand the 10th Amendment to the U.S. Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Amendment X, United States Constitution
U.S. Constitution
U.S. Constitution

Contrary to what many seem to think, this decision by the Supreme Court did not directly outlaw abortion. It did assert that there was no right to abortion in the Constitution; therefore, this was a subject that the individual states, and the voters in those states, should decide. Judge Alito wrote in the majority opinion that:

“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages.”

Dobbs v. Jackson Women’s Health Organization

Again quoting Judge Alito from the majority opinion:

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

One last quote from Alito:

“Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,”… the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”

I was initially elated at this decision, but not for reasons you may think. For me, the issue was not so much about abortion as it was about the proper limits to the power of the Federal government. Under the concept of Federalism, the government of the United States has limited and defined powers set forth in the Constitution. In theory, the Federal government has authority only over those things explicitly enumerated in the Constitution.

For far too long the courts have expanded the powers of the Federal government without those powers actually being obviously found in the Constitution – often under a theory of “substantive due process.” Quoting from the Cornell Law School:

“…the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain amendments

Substantive Due Process, Cornell Law School

In Roe v. Wade seven unelected judges in 1973 found a right to abortion based on what they saw as “evolving social norms.” However they found this right contrary to “U.S. history and tradition” where, as Judge Alito pointed out, it had been illegal at some point of pregnancy in every state prior to Roe v. Wade.

In other words, the Court peering into some “penumbra” claimed to see powers and rights the Founders never intended in the Constitution. This is what is called judicial activism. The Merriam-Webster defines it as:

“the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent”

Merriam-Webster, Judicial Activism

That was why I was elated at this decision to overrule Roe v. Wade. It was the case of turning back the clock on this judicial activism to a more narrow interpretation of the Constitution and the limits of the power the Federal government can properly wield.

But that was not the end of it. In the same session, the Court ruled in West Virginia v. EPA that the EPA had overstepped its authority to literally make new laws through its power to regulate. In New York State Rifle & Pistol Association Inc. v. Bruen the Court again, interpreting what the 2nd Amendment means, decided that individuals not otherwise barred by a criminal record or mental illness have an inherent right to carry firearms in public for purposes of self-defense.

These decisions are a push backward against judicial activism and imaginative interpretations of the Constitution where judges staring into a penumbra seem to be able to find justification or any “right” they find worthy, or to ignore a clear right (2nd Amendment) explicitly stated in the Bill of Rights.

After the initial elation though some other thoughts come to mind. Societies do evolve, and it is not impossible that there may be more rights worthy of respect than those apparent to the men who wrote the Constitution in the eighteenth century. For example, on a personal level I am not against some abortions very early on, say the first trimester. I am totally opposed to late-term abortions of a healthy baby purely on the whim of the mother. But there could be some room for compromise here.

The problem, if one calls for a strict and narrow interpretation, is that it is very, very difficult to amend the Constitution to add new rights. Often as not it is impossible. Therefore the pro-life folks, and others wanting to add rights or expand the power of the Federal government, would prefer to win that battle at the Federal level. Otherwise, they are faced with 50 battles in 50 states and a patchwork of different laws enacted in individual states.

Perhaps the Founders made it too hard to change the basic framework? However, I don’t think the proper solution is for judges and agencies, like the EPA, to have the power to add to the powers of the Federal government, therefore, short-circuiting the rightful power of voters to have the ultimate authority.

In conclusion, if I had to choose between two alternatives, strict interpretation versus judicial activism, I would choose the former. I don’t like the idea of unelected individuals in our government simply making up new laws based on their prejudices.

Maybe the Founders were right. It may not be perfect, and top-down change is very difficult if one does follow the Constitution, but that is infinitely preferable to the alternative of “raw judicial power” (Alito in Dobbs) and unelected EPA bureaucrats making monumental decisions that could destroy our economy.

2 thoughts on “Roe v. Wade

  1. There are two premises I find unacceptable in this.

    One: That voters deserve are more qualified than bureaucrats to make decisions in government. I would much rather have an EPA bureaucrat, who is probably more educated in matters of environment and climate, make decisions regarding environmental policy. Educated people should be in charge of the things they are educated in, and those who are uneducated in those matters should take their rightful place in a classroom or behind a book to learn. When it comes to making decisions in a given area of expertise, the ignorant masses of the voting population cannot possibly be trusted to make educated decisions. Most people do not study climate. They either trust what the climatologists say, or they go into anti-science and denialism about it. Neither of these positions are qualified to make decisions regarding climate for the same reason that a plumber is not qualified to do an electrician’s job. You are allowed to think what you want about climate change, but as long as you lack formal education in that matter and as long as you do not conduct peer-reviewed study on it, you are unqualified to vote for decisions on it and should not be allowed to.

    Two: That what the founders intended actually matters. Did the founders make it too hard to change the basic framework? If they did, then I say too bad. They’re dead now, have been for awhile, so now we can do what we want and who cares what they think? Personally, I think priorities should be to appease our children and descendants, not dead and useless corpses. Contemporary issues belong to contemporary times, and they are ours to confront. What people 250 years ago might have to say is useless because they are ignorant. They wouldn’t even recognize the world we live in now. Climate change was barely even a concept in their time. By the same token, a strict interpretation of the constitution is also just as useless. In a dynamic universe where the only constant is change, to embrace any inflexible ideology is to embrace collapse. The tree that doesn’t bend will break. Just look at the Civil War. Many of the arguments you are making here were also made by states wanting to maintain slavery. The same applies with the matter of abortion. It might not cause another Civil War, but crime is going to shoot up in the next few decades now that more kids are going to be forced to be raised in homes where they aren’t wanted.

    1. “I would much rather have an EPA bureaucrat, who is probably more educated in matters of environment and climate, make decisions regarding environmental policy. Educated people should be in charge of the things they are educated in,…”

      You appear to be a subscriber to the ideas that Plato articulated in his “Republic,” essentially a dictatorship of the educated and the experts. You probably have not heard of the “wisdom of crowds” where the sum judgment – in certain cases, particularly where the crowd is largely egalitarian – often is more accurate than the judgment of supposed experts.

      In fact the judgment of many supposed experts today, for example Dr. Fauci, is open to considerable skepticism. I have observed that many on the Left favor some forms of dictatorship where those with their opinions are in charge. That is probably why the Founders included the 2nd Amendment in our foundational documents.

      “They either trust what the climatologists say, or they go into anti-science and denialism about it.”

      Yes, the ocean will soon flood the East Coast! Crops will fail and tornados and hurricanes will devastate the US! Actually we are probably no warmer today – perhaps even less warm – than back in the Medieval Warm Period circa 900 AD to 1300 AD. More CO2 in the atmosphere is beyond argument good for growing crops to feed people. Oceans have been rising for thousands of years and a number of cities known from ancient writings are now fully under water (think of Alexandria in Egypt).

      There are plenty of skeptical scientists who question the “climate change” narrative. It is not, by any measure, “settled science.”

      “Contemporary issues belong to contemporary times, and they are ours to confront. What people 250 years ago might have to say is useless because they are ignorant.”

      I think some of the Founders were some of the most brilliant people to ever walk the planet. They came up with a system of government that has served pretty well to protect individuals rights. Yes, some were slave owners, but they created a system of government that was almost certain to eventually end slavery, and it did. See this article on slavery:

      Americans didn’t invent slavery. They inherited from the past where it had been practiced since before recorded history.

      As to being “ignorant,” I think most of those Founders were far better educated than the “woke” robots our colleges seem to be turning out in large numbers today.

      The experiment in government they set up has done pretty damn good for well over two centuries. The rulings in Roe vs Wade and West Virginia vs EPA are a good step back towards what they envisioned – a Federal government of limited and enumerated powers and states and the people in charge of everything else.

      Finally, it is challenging to make top-down changes in government when the Constitution is respected. There is another means to amend the Constitution which has not yet been attempted, a convention of the states under Article V of the United States Constitution. With a resurgence of popularism (thank you President Trump!) that may still be a possibility. We’ll have to wait and see.

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