Addressing one of the Supreme Court’s most flawed decisions

Regardless of your stance on abortion, Roe v. Wade should be overturned. 

You’re probably wondering how on earth one can even separate Roe v. Wade from abortion. Isn’t this the pivotal case of Roe appealing in opposition to Texas law that gives women the right to choose an abortion? Well, it was, but it isn’t now.

In fact, Roe is not the case that currently governs abortion legislation; it’s Casey v. Planned Parenthood. Which is a case that not only challenged and upheld the decision of Roe but shook the already unstable reasoning behind the decision.

But, that’s a conversation for another time. Instead, let’s look at Roe v. Wade and how it began the stream of flawed judicial thinking on abortion law.

The decisions made in Roe v. Wade

The Court declared that the Constitution provides a fundamental “right to privacy” via the Fourteenth Amendment that encompasses the right to choose whether or not to have an abortion. 

And their second decision was that this right is not absolute. The right must somehow balance the interests of the government to protect both the mother’s life and the unborn child’s life and the mother’s right to privacy.

The Fourteenth Amendment, particularly the Due Process Clause that is targeted does not name an explicit right to privacy. However, the Supreme Court has acknowledged the interpretation of a right to privacy since 1891.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” – The Fourteenth Amendment

The interpretation of the word “liberty”, in particular, has eluded to this recognized right of privacy.

While this ruling in favor of abortion falling under a right of privacy is compelling, the reasoning of the court is contradictory at best. Most of the constitutional amendments very clearly protect different aspects of privacy. The difference, though, is that these rights are explicitly protected and not vaguely lumped into an amendment they don’t belong in.

Additionally, there is federal legislation to protect medical and health privacy, such as HIPAA and FTC laws. Medical information and decisions cannot be disclosed or enforced unless the interests of the state are for public health and safety. 

For instance, various vaccinations are required to attend public schools, and seatbelt laws are in place to protect the public from accidents. Yet, the law explicitly defines these boundaries or the boundaries are very easily inferred. 

Abortion was never explicitly protected, nor easily inferred from the language of the amendments used to justify it. Additionally, many states found abortion to conflict with their interest of public safety due to the emotional and physical harm to mothers and the ending of a life. 

True and due privacy is protected in the United States under the constitutional amendments, but abortion is nowhere to be found. 

For example, the First protects the privacy of your beliefs from the state. The Third and the Fourth protects the privacy of your home and your personal life from the state. The Fourteenth and Fifth state that none of your rights can be violated unless you are found guilty of a crime through due process.

The court then agreed, also, that this right to abortion was not absolute and that states do have some power to regulate abortion. However, the ability of regulation given to the states was very minimal, and even undermined by the vague exception of a maternal health risk.

The deception of exceptions

Justice Blackmun, one of the Justice’s deliberating Roe, drawing on his own research and speculating rather than any medical evidence being presented in the courtroom, determined whose interests were to be protected for each trimester of pregnancy.

In the first trimester, he determined that the mother’s interests of privacy were more important than the state’s interest in protecting prenatal or maternal life. 

In the second trimester, he determined that the state may exercise some liberty with concern to the mother’s life as he believed the risks of abortion began to outweigh the risks of pregnancy. 

In the third trimester, the state was finally permitted, in Blackmun’s reasoning, to regulate or even ban abortion with the interest of the unborn life in mind. Although, only if there were exceptions allowed for when the mother’s health was threatened. 

There are many issues with these unstable deliberations. The first is the lack of medical evidence presented in the hearing to suggest where the point in which abortion is safer than pregnancy, or vice versa, really is. Secondly, as mentioned in the previous section, the vague health exceptions permitted by the Justice.

While these exceptions seem noble and reasonable at first glance, Blackmun failed to define them in a way that actually grants due powers to the states or properly acts to protect the mother and child. Blackmun acknowledged possible physical and mental health concerns and any adverse effects associated with raising children that may influence these two.

This then begs the question of where the line is drawn. 

If the states can regulate or ban abortion in the third trimester but anyone can plead to their doctor for a note saying that raising a child will cause them stress and mental or physical harm, can the states actually regulate abortion in the third trimester? 

And if abortion becomes more dangerous in the third trimester than pregnancy, using Blackmun’s logic, how extreme do these health concerns need to be in comparison?

This leaves Roe incredibly indefinite and continuously up for interpretation. There are undoubtedly more questions created than those answered.

Even more so, Blackmun’s logic has laid the groundwork for other measures of when abortion should and should not be allowed to occur. The most prolific example of this is that of fetal viability. 

Fetal viability is the ability of the baby to survive outside of the womb. The issue with such a definition is that the ability of a baby to survive outside of the womb is constantly changing because of advances in technology. 

Premature infants are able to survive in the hospital today as early as 23-24 weeks gestation. This is only just over half the time of a full-term pregnancy of 40 weeks gestation. 

Who is to say that medicine won’t advance even further to care for even earlier infants?

One could argue that fetal viability is then when a baby would be able to survive without the help of a hospital. However, this logic is also flawed as this cannot be determined with certainty in even later pregnancies.

A premature birth is defined as birth prior to 37 weeks gestation, and premature babies are significantly more at risk for needing medical intervention for issues such as feeding and breathing due to underdeveloped organ systems. 

Therefore, prematurity is only one month early and leaves an infant at a much higher risk for medical intervention. Blackmun’s trimester logic does not even go this far, but fetal viability could take it to such an extent. 

Again, where can the line be drawn then, and by what standard?

Context is key

While I do not know whether to entirely disagree with the Court’s interpretation of the Fourteenth Amendment’s intention of protecting privacy, I cannot with full confidence agree. Even if I do like the idea of it.

However, I certainly do not believe for one second that abortion was meant to be encompassed in that right. A quick look at historical context is sufficient in proving this point.

    Before Roe, not a single law, case or other authority had suggested the possibility that abortion would fall under Fourteenth Amendment rights. More significantly, in 1868 when the amendment was ratified, 30 out of the 37 states at the time had criminal laws prohibiting abortion. 

Additionally, the Ohio legislature passed a criminal law prohibiting abortion at any point after conception only four months after the amendment was ratified. This very clearly suggests that no writer nor supporter of the amendment intended for abortion to be adopted under it.

Many would argue that being forced to have a child when they don’t want one would infringe on the Due Process Clause’s promise of life, liberty and pursuit of happiness to them. This is a valid and compelling defense.

However, recall that the state has interests to protect the public life that compete with the interests of many individuals. Take the vaccination example again. There are many who oppose vaccinations as a whole, but the state deprives them of that liberty because of the apparent public health concern.

In the case of abortion, the state has interests to protect both the mental and physical health of the mother, and the health and life of the unborn child. The Journal of Medical Ethics found that regret and mental distress are much less likely to occur with choosing motherhood than with choosing abortion.

The amendment’s main purpose, privacy interpretation aside, was to work to correct the injustice of slavery in America. It was one of three post Civil War amendments, and it reversed the Dred v. Scott decision that very wrongly and unconstitutionally declared that African Americans were not U.S. citizens.

The sole purpose of this Due Process clause was to grant African Americans the fair and equal trials that they had been deprived of. The word “liberty” does refer to the bodily freedom of a citizen, but bodily freedom has never hinted to allowing abortion. This is evident as this bodily freedom may very well be taken away with due process of law.

“Life” is freedom from capital punishment unless it is taken by due process of law. “Liberty” is freedom from incarceration unless it is taken by due process of law. “Property” is freedom from fines or seizure of property unless it is taken by due process of law.

To add insult to injury, no one claims that the Fifth Amendment grants a right to abortion despite the Fourteenth Amendment directly imitating its Due Process Clause. It’s an embarrassing contradiction.

The only difference between the two clauses that warranted an additional amendment is who the amendment restricted. The Fifth Amendment included the same Due Process Clause but only leashed the federal government. 

The Fourteenth Amendment required that the states also adopt this clause in order to protect African Americans from racist legislation in the wake of the Civil War.

“…nor be deprived of life, liberty, or property, without due process of law…” – The Fifth Amendment.

Closing thoughts

I would be lying to you if I didn’t say that I opposed abortion. My faith in God and the Lord Jesus Christ prohibits room for the intentional ending of what I firmly believe to be a precious human life.

However, I also believe that, from a purely legal standpoint, Roe v. Wade should have never made it to the Supreme Court for deliberation. 

The Fourteenth Amendment, when taken into context and compared with its earlier counterpart, cannot be misconstrued as to allow a right to privacy and then abortion under that privacy. Additionally, the context in which the amendment was written does not logically allow for such a conclusion.   

Even if this was not so, and a conclusion of a right to abortion could be drawn, Roe did an exceptionally poor job at laying the framework for its execution. No clear lines can be drawn to determine maternal danger and when it is acceptable for states to intervene.

Even more so, this is such a complex issue that should not have been evaluated by people who were not elected but appointed. As I have argued in this article, I do not find this to be a right allowed in the Constitution. 

This is even supported by the way that many treat the case. Rather than being treated as a Supreme Court case, it is treated as legislation, as if this is something that the majority of the people believe in. The truth is, the arguments continue to be nearly 50-50.

This division and the historical condemnation of abortion in past laws of the country further prove that abortion would have never made it into the Consitution as a right. 

From this deeper analysis of Roe v. Wade, I have come to these conclusions, and I hope that those on either side can recognize the lack of clarity and sense in the decision.

In order for the Federal Government to limit state action in abortion laws, a new amendment, explicity determining this right would have to be drawn up and ratified by the majority of the states. Given the nearly 50-50 division constantly encompassing the country, I see that as a highly unlikely accomplishment.

Therefore, many in support of abortion are scrambling to defend a right that is vaguely and wrongly awarded to them, and they may not even know it. Those who are aware likely know that, without the poor decisions of Roe, they would not be able to justly and rightly achieve this right.

Many fear the overturning of Roe because many states, especially conservative-dominated states, have trigger laws in place that would criminalize abortion. However, there are also many liberal states that will continue to allow abortion if Roe were to vanish. 

The states that would allow abortion to continue until their definition of viability include, but are not limited to, the District of Columbia, New York, Washington and New Jersey.

Again, from a personal standpoint, I don’t believe that people have the right to decide who lives or dies at any stage in development. However, from a legal standpoint, this is an issue that should be deliberated on by the people and their elected officials.

The Constitution does not grant a right to abortion, at least in the capacity that Roe v. Wade chose to defend it.

There is also too much emphasis on supporting organizations that give abortions purely for the reason of them providing abortions rather than offering to support women through motherhood. 

Motherhood may not seem like an option to some because of their economic, mental or physical health status. However, as a society and community, we have a great influence over that.  

Many people consider donating to Planned Parenthood so that they can fight to keep their abortion services, but how many of us stop considering donating to women and children in need just as much?

While I am a Christian who believes in having children within a marriage, I think we all need to be more understanding of women who get pregnant from a variety of circumstances. Looking down on these women does not help them or their babies in any way. It does not make them any less worthy of support. 

Additionally, there are Christians and practices of other religions who are out there who are against the use of birth control but fail to recognize that its widespread use and encouragement is the lesser evil. Access to and use of other methods would be much more preferable than the use of abortion as a means of birth control.