“To Say What the Law Is” – John Marshall

Intensive constitutional analysis of 'Roe v. Wade'

February 3, 2022

Abortion is one of the most contentious subjects in American society. For 49 years, abortion policy has been dictated by the Supreme Court, not the people’s legislative representatives. In Roe v. Wade, the Supreme Court established a controversial right to abortion which will be reconsidered this year in Dobbs v. Jackson Women’s Health

Roe v. Wade began when Norma McCorvey, a Texas woman using the pseudonym Jane Roe, sued district attorney Henry Wade over an abortion ban. In 1973, the case was brought to the Supreme Court. Writing for the Court, Justice Harry Blackmun asserted the Fourteenth Amendment protects a generic “concept of personal liberty,” including marital privacy. Since an unwanted pregnancy could cause distress, Justice Blackmun reasoned that privacy must include a right to abortion.

Justice Blackmun’s rationale used substantive due process, a doctrine espousing that “fundamental rights” such as the “concept of personal liberty” are protected under the Fourteenth Amendment’s due process clause. The clause’s text reads, “Nor shall any State deprive any person of life, liberty, or property, without due process of law.” It does not mention “fundamental rights,” and permits protected liberty to be taken with due process.

Justice Blackmun then created a trimester framework to balance abortion rights against other interests. Only restrictions presented by basic medical rules were allowed in the first trimester. In the second, regulations had to be “narrowly tailored” to protect the woman’s health, and abortions could be banned in the third trimester. Justice Blackmun’s trimester framework is nowhere in the Constitution and may be considered judicial legislation, a violation of the separation of powers.

In Planned Parenthood v. Casey, abortion providers sued over Pennsylvania’s spousal notification and parental consent requirements. Upon reaching the Supreme Court in 1993, the state requested Roe be overturned and the restrictions upheld. Justice Sandra Day O’Connor’s plurality opinion upheld Roe out of respect for precedent, but changed the enforcement structure: before a fetus could survive out of the womb, no “undue burden” on abortion could be imposed.

Today, the Court is ready to reconsider Roe. When Mississippi prohibited abortion after 15 weeks of pregnancy in 2018, abortion clinic Jackson Women’s Health sued and asked courts to strike down the law. Last year, the Supreme Court decided to review the case, Dobbs v. Jackson Women’s Health, hearing oral arguments in December 2021. Justice Brett Kavanaugh’s remark, “Our Constitution is neither pro-life nor pro-choice,” foreshadows the eventual ruling: given that a majority of our Justices use literalist interpretation, Roe will probably be reversed.

Justice Antonin Scalia’s dissent in Casey explains the question before the Court, “not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense, or even whether it is a liberty of great importance to many women… The issue is whether it is a liberty protected by the Constitution of the United States.” Since “the Constitution says absolutely nothing about it,” I expect the Court to, in the words of Justice Scalia, “get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

This year, the Supreme Court will likely return to originalist principles of interpretation and overrule Roe v. Wade. The judiciary, holding only the power to interpret law, has no role in crafting policy. For the first time in almost 50 years, the people would dictate abortion policy through their elected representatives. Your author asks two things: first, research the issue and decide whether you support or oppose legal access to abortion. Second, vote for federal and state politicians who share this view.

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