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.