Charlotte, NC – During the Presidential Debate this past week, the former VP boldly claimed: “Roe v Wade is on the ballot” with this coming election, which President Trump denied. Although most people maintain a strong political view of abortion, most do not understand the history of the controversial landmark decision.
The basis for the Roe v Wade decision was that Texas state law unconstitutionally violated Roe’s “right to privacy” by denying her appeal to obtain a legal abortion under Texas law. Unbeknownst to most people today, abortions had been performed in the US since the early 1800s and had been regulated at a state level.
The court maintained the Texas law violated the 14th Amendment. The 14A, however, makes no explicit guarantee of a right-to-privacy nor did any other federal law as of 1972. Roe v Wade single-handedly established a federal and constitutional right to privacy, as well as the right to receive an abortion, rather than these measures being established through the legislature.
In their dissents to the 7-2 decision, Justices White and Rehnquist established several points of contention that may provide a launchpad for a potential reversal to the decision if a case is brought before the court.
First, Roe v Wade opens the door to injudicious and frivolous abortions that would not meet any medical criteria as being necessary to maintain the life of the mother. Unfortunately, today, “Abortion on Demand” is the direction of the Democratic party. The 2020 DNC platform calls to “fight to overturn federal and state laws that create barriers to reproductive health and rights.”
VP nominee Kamala Harris has called for the right to an abortion anytime and anywhere for any reason. Just as Justice White had begrudgingly acknowledged in 1972, society “values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.”
Second, the SCOTUS seemingly over-stepped their Section II authority in its decision. As previously stated, Roe established a constitutional right to an abortion, which was not possibly foreseen by the founding fathers. Since no federal law, drafted by a Congress of elected officials from across the country, had established abortion laws, abortions had been regulated by the states as the 10th Amendment would prescribe.
When SCOTUS struck down regulatory laws in Texas and Georgia, they also fundamentally struck down most every state-level regulation on abortion across the country. The bench behaved more as the federal legislature in Roe. As White dissented: “I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.”
Third, Roe signaled a position of activism on the part of the court. As Justice Rehnquist stated: “The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts,, 105 (1934).
Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.” The country was split on abortion in 1972. That divide has not really closed in the past 50 years. The fundamental “right” to an abortion is still not broadly viewed as fundamental.
As the Senate confirmation process draws near for SCOTUS nominee Amy Coney Barrett, the Senate Democrats will undoubtedly kick and scream at the prospect that ‘Roe v Wade’ may be in jeopardy. The left will argue the pre-born have no rights instead of fighting for their rights.
They will fight to block the confirmation of a constitutionalist Judge in favor of more liberal, activist Justices. They will assume everyone in this nation is or should be okay with abortion on demand. If the past 50 years are any indication of the fight yet to come, then be prepared to witness a vicious confirmation hearing between now and election day.
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