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Volume CXXXII, Number 12 |
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Roe is a bad law
TODD BUELL
COLUMNIST
This Wednesday marked the thirtieth anniversary of Roe v. Wade, the landmark decision that solidified a woman's "right to choose" to have an abortion. The court has since permitted certain restrictions on abortion if they do not present an "undue burden" to an abortion. Recent polls by both conservative and liberal organizations show that this desire to restrict abortion is indicative of the public's disdain for Roe's permitting of "abortion on demand" yet the public is also not willing to outlaw abortion entirely. This expression of public opinion and the dubious constitutional justification for the "right to an abortion" are ample reasons for the court to overturn Roe and return the decision to the states.
Both the liberal New York Times and the conservative Wall Street Journal revealed polling that shows Americans straddling the center on abortion. The conservative Wall Street Journal's Peggy Noonan mentioned two polls. One, "commissioned by pro-life groups," revealed that 68 percent of Americans support "restoring legal protection for unborn children." More strikingly, a "neutral" USA Today/CNN/Gallup Poll showed that "70 percent of respondents said partial-birth abortion should be outlawed."
A New York Times survey released on January 20 displays slightly different results. This poll reveals that 40 percent of Americans think "abortion should be legal," while 20 percent "say it should not" and another 40 percent believe "it should be legal with stricter limits."
Both polls show that a substantial number of Americans are somewhere in the middle on abortion. They agree that some abortions should be legal, but feel that Roe has gone too far. However, these people's views will never decide abortion policy because the Roe decision has forced the question of abortion out of the hands of legislatures, who are accountable to the people, and into the hands of judges, who are accountable to no one.
Thus, the only way for the people to enact their will accurately would be an overturning of Roe v. Wade. Obviously, one should not endorse such a change merely because the public wants it. America is a republic, not a democracy, and thus limits rest on the majority's power. However, when one examines the constitution, one sees there is a dubious justification for a "right" to an abortion.
The right originates from the "due process" provision of the 14th amendment. "No state shall deprive any person of life, liberty, or property without due process of law." "Liberty" does not imply "privacy" or a "zone of privacy" as Justice Blackmun writes in the Roe majority opinion.
This expansive reading of the amendment began in the 1965 case of Griswald v. Connecticut overturning Connecticut's law proscribing contraceptive products. Justice Douglas infamously wrote that the amendment had "penumbras and emanations" which judges were free to shape with utmost subjectivity and capriciousness. Needless to say, the framers of the amendment did not have this in mind and only wanted constitutional justification to enact a civil rights act granting blacks the right to own property, make wills, be party to contracts, sit on a jury, etc.
If the court overturned Roe, the decision on abortion would be left to the states. This would likely precipitate some states to proscribe abortion but most would likely keep it legal with restrictions such as "health of the mother" or "first trimester." Many states would likely ban "partial birth abortion." Supporters of current abortion rights would have to enact a constitutional amendment formally codifying the "right to an abortion."
Considering the vox populi finds unlimited access to abortion noxious, and the Constitution gives little justification for the right, whether or not one is pro-choice or pro-life, the most honest way to address the abortion issue is through the political process, and not the courts. This was the opinion of Justice Byron "Whizzer" White, one of two dissenters in the Roe decision: "I cannot accept the Court's exercise of its power. This issue should be left with the people."
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