Thoughts on the Roe Decision
Roe was overturned this week. I’ve read most of the decision. It’s a hefty 213 pages.
Here’s what I’ve gathered:
The Supreme Court wasn’t ruling on if abortion is moral or right or wrong. They were ruling about if there is or isn’t a right to abortion spelled out in the Constitution. They looked at ye old English history, ye old English law, Colonial-era law, U.S. history, the actual founding documents of the country, and the context surrounding those documents, among other things. After parsing through all of that, the Justices decided that there is not a right to abortion in the Constitution.
Since they couldn’t find any right in our founding documents supportive of killing one’s unborn child, they overturned the previous Roe decision and pushed the issue of making abortion legal or illegal back to the states for so the states can decide for themselves. If there were a right to abortion in the Constitution, then it would be a federal issue because it’s the governing document of our Constitutional Republic. That’s how federalism works. That’s how our country was designed to work.
In the decision, Justice Alito explains (somewhere around page 40) that “when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.” In this case, some of the large consequences of that bad mistake are the deaths of over 63 million babies, the infringing of states’ rights, and the stifling of the rights of citizens to let their voices be heard with regard to voting for laws and policies for their states.
The decision spent a lot of time elaborating on how poorly written and poorly decided Roe originally was. Even the late Justice Ginsburg critiqued Roe and said that it should’ve been decided on women’s rights and not privacy rights.
Some states will definitely restrict abortions and likely ban them entirely except for cases of rape, incest (also called “rape”), and life of the mother situations. Other states will definitely make themselves “safe havens” for abortions and have them up to the point of birth.
The good news: States can now decide via the democratic process what they want to do without being forced one way or another by an unelected federal judiciary and what those nine people believe the law should be.
I found this section in Justice Thomas and Justice Scalia’s dissent in Obergefell to be particularly helpful:
“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”(Bold type mine)
Similarly, the overturning of Roe means that it is no longer the majority of the nine lawyers on the Supreme Court who rule me and my state on the matters of killing or preserving innocent, unborn human life. It’s now up to my fellow citizens and myself whether we cherish, support, and cultivate the lives of the most vulnerable among us or whether we dispose of them with little more regard than that of a soiled newspaper on the floor of a parakeet cage.
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