The chief problem with Roe v. Wade is that no one can find it in the Constitution. In fact, Roe is not just one degree removed from the Constitution, but two degrees away from the Constitution. To get to Roe, one must first get through Griswold v. Connecticut, which found that within the right to privacy was a marital right of privacy. It removed privacy to the penumbras of the constitution. Only from there can one get to Roe.
One can fairly well gather from the Constitution’s Fourth and Fifth Amendments that there is a right to privacy of some kind. Griswold finds an explicit right to marital privacy related to, for example, the use of contraception, within that right to privacy. Roe then goes a step further to find, as a right to privacy, a woman’s right to kill her unborn child.
No reasonable reading of the American Constitution suggests that right exists within the Constitution. In fact, the plain reading of the Constitution suggests no abortion right at all, let alone one broken down into the nomenclature of trimesters: no state can ban abortion in the first; states can impose restrictions during the second; states can prohibit in the third with reasonable exceptions.
Where the Constitution is silent, the fifty laboratories of democracy are supposed to speak. Each state should be able to set its own laws regulating abortion. But seven men on the United States Supreme Court, in 1973, conjured up a right to an abortion within the penumbras of other penumbras of various amendments to the Constitution.
The late Ruth Bader Ginsburg acknowledged the shoddiness of the decision even as she supported the right to kill children.
Roe takes the Constitution, a document written so American citizens could understand their rights and government, and hands it over to a professional class of life-tenured black-robed masters and lawyers who can conjure at will their coveted requests from the constitutional framework. We are, with Roe, a nation of judges and lawyers, not men and women. It began a series of cases that separates citizens from the Constitution, requiring a near-divine and always infallible intermediary in a black robe to tell the citizen what his Constitution actually says.
With the second amendment, the average citizen can ascertain the right of gun ownership in America. With abortion, no citizens not trained in the dark arts of liberal legal interpretation and how to read the breath of a living piece of paper can even understand and so can never truly respect the rule of law. The law becomes not the compact of governance, but the possession of the great “Says Who” — who says what the law is, regardless of what the law plainly means.
Not only does Roe conjure things no one can fairly read into the Constitution, it imposes a morality on 350 million people demanding those people give a right to kill children that many of them abhor. Roe set off the culture war we have today all because seven lifetime appointees of the Supreme Court decided the morality of Harvard Yard could be imposed as a one size fits all morality for all of the varied fifty states. It remains a decision of ultimate pride that has seeded a culture of death in America.
Beyond that, the defenders of abortion rights now are left in the morally depraved state of using the arguments of nineteenth-century slavemasters to defend their right to kill. “It’s my property” has become “it’s my body.” “If you don’t want one, don’t have one” stays the same. “They aren’t even really human” stays the same. “They can’t survive off the plantation” becomes “they can’t survive outside the womb.” On and on the moral depravity goes.
Should Roe v. Wade end after tomorrow’s arguments in Dobbs v. Jackson Women's Health Organization before the Supreme Court, abortion will continue in the United States. Many states will keep it legal. Other states will find their own state supreme courts conjure an abortion right out of whole cloth. Many others will see pro-life Republicans finally reveal they were never really as pro-life as they claimed. But some states will actually protect the life of the unborn even as Hollywood and Fortune 500 companies announce their boycotts of those states and build pressure for the Cult of Death to keep advancing.
But abortion will not end. Ending Roe does not end the depravity. It does, however, put the policymaking in the legislatures of the several states where it should have been this whole time. Seven black-robed justices never had any business deciding such an issue. The Court should exercise humility and return the decision-making on abortion back to the states.
Ironically, as well, should Roe end, it would also end the last tie that binds together so much of the right as political realignment sweeps the country. In ending Roe, the Court would be upending the forty-year center of gravity of the conservative movement in Washington, D.C. at a time the conservative movement does not really even know what it stands for.
But it would all be worth it. Perhaps then the conservative movement could stand for a culture of life and recommit itself to that. Ending Roe is actually the first step towards a true fight for life, not an end to that fight. Once Roe goes, the fight for efficient adoptions, social safety net support for mothers, a church and government-wide increase in expansive neonatal and infant care, etc. will begin in earnest.
The Supreme Court of the United States of America should overturn Roe v. Wade and Casey v. Planned Parenthood and they should use Dobbs v. Jackson Women's Health Organization to do it.
I expect, however, what we will get instead is a further curtailment of Roe without an outright overruling with Mississippi’s fifteen-week abortion ban upheld, the second trimester standards gutted, and both sides screaming that they’ve been defeated so please send them money. Conservatives will denounce their very successful judicial long game and claim it all failed. Progressives will denounce the decision as the end of the world even as Roe remains. And both will want your money. But, for many, we will appreciate more babies saved and the culture of life advanced reasonable and back within the proper bounds of the American Constitution.