It's debatable: Should Supreme Court have overruled Roe v. Wade?
In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate whether the Supreme Court should have overturned the Roe v. Wade decision. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston.
ROSEN 1
Decided in 1973, Roe v. Wade held that women have a limited constitutional right to terminate their pregnancies. Over the next five decades, it became the Supreme Court’s most contentious case. Roe’s proponents saw the decision as ensuring the right of women to make fundamental decisions about their lives and bodies free from government interference, thereby enabling them to participate fully and equally in society. Roe’s opponents saw the decision as stripping “from the prenatal child the right to continue to live and grow, safe and free from intentional harm.” It denied “unborn children” the right to life. I do not doubt the sincerity or good intentions of those espousing either view or even the validity of their arguments. Nevertheless, the Court in Dobbs v. Jackson Home Healtherred in overruling Roe’s underlying holding.
I was never enamored with the Roe decision. The Court’s doctrinal basis for a right to abortion is essentially “whatever” — a one-sentence reference to two constitutional provisions seemingly having nothing to do with abortion. In 1992, the Court modified Roe in Casey v. Planned Parenthood by placing the right squarely in the 14th Amendment’s Due Process Clause — so-called substantive due process, a concept with a somewhat ignominious history. The Court used it in Dredd Scott v. Sandfordto hold that Congress could not prohibit slavery in free federal territories because it denied slave owners their property. In the early 20th Century, substantive due process was employed to impose a lassiez-faire model on the nation’s economy, overruling minimum-wage and maximum-hour legislation.
The employment of due process to protect an individual’s right to privacy, however, is profoundly different. It is a right implicit in the constitutional structure. The state has no business interfering with certain intimate personal decisions, such as marriage and procreation. Casey tried to accommodate both sides of the abortion debate: before fetal viability, women alone decided whether to continue their pregnancies; after viability, the state could prohibit the decision to terminate a pregnancy. As Justice Breyer notes in his Dobbsdissent: the Court’s majority “discards the balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring the pregnancy to term, even at the steepest personal and familial costs.” This is particularly true in Texas, which criminalizes nearly all abortions, effectively conscripting women’s bodies to serve as birthing surrogates for the state.
MOSTER 1
Although the Court’s pronouncement in overruling Roe v. Wade has shocked pro-abortion interests in the United States, it was properly decided as a matter of law. The majority correctly framed the legal issue as follows: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the 14th Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this nation’s history and tradition” and “implicit in concept of ordered liberty.” The right to abortion does not fall within this category.”
The inquiry, therefore, is whether the “right to an abortion” is deeply rooted in our history and tradition. An objective analysis and review of state law evidence that until the late 20th Century “such a right was entirely unknown in American law” (See, Dobbs). Although such conclusion is an “inconvenient truth,” it is legally sound and indisputable. A so-called “liberty right” of such short duration cannot be by its very nature “deeply rooted” in our history and tradition. Consequently, Roe was incorrectly decided and should never have legalized abortion under any rationale.
Rick predicates his opposition based on a woman’s right to privacy and that “the state has no business interfering with certain intimate personal decisions, such as marriage and procreation.” However, such a bold and conclusory statement is not referenced in the Constitution and belies the judicial test employed to determine whether an alleged right falls within the concept of “ordered liberty” as above defined. It does not.
That said, it is up to the states to determine whether abortion should be outlawed. Although I support such a ban, there must be exceptions for incest, rape, and when the life of the mother is at stake. Critically, state legislators (predominantly male) are hypocritical or worse by laying all the blame and consequences on women. Irresponsible men must be held legally and financially responsible for their actions and public funds set aside to facilitate medical, childcare, and particularly adoption services. The failure to do so victimizes women and is inconsistent with the very notion that the “unborn” are entitled to protection.
ROSEN 2
First, persons who support Roe are not “pro-abortion.” Instead, they believe women, in consultation with their doctors, should have a time-limited right to choose whether to continue their pregnancies. After all, their bodies are involved, not the states’.
Second, that the Constitution does not mention abortion is hardly extraordinary, having been written by men in the 18th Century. Moreover, as Chief Justice John Marshall observed, a Constitution provides an outline of government—it does not have the “prolixity of a legal code.” And the Ninth Amendment makes clear that the Constitution’s enumeration of rights may “not be construed to deny or disparage others retained by the people.”
Third, the right to personal autonomy grounded in the term “liberty” in the Due Process Clauses is hardly a new concept—the Supreme Court recognized it nearly a century ago. The Court has been inconsistent in basing the right on history and tradition, a notion primarily derived from a 1997 case dealing with physician-assisted suicide. In 2015, the Court rejected this approach in cases dealing with “other fundamental rights, including marriage and intimacy.” And the Court has recognized unenumerated rights without serious regard to history and tradition in cases involving involuntary sterilization, intimate adult personal relationships, and the choice of partners in marriage.
Fourth, the Court’s reliance on 19th and early 20th Century statutes to demonstrate that the right to abortion is not “deeply rooted in the nation’s history and tradition” is both specious and unsurprising given the legal status of women when many statutes prohibiting abortion were enacted. Women had no political power. If married, they had no legal identity separate from their husbands. In sustaining a law barring women from the legal profession, the Court stated in 1873: “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” Not until the mid-1970’s did the Supreme Court recognize a heightened standard of equal protection scrutiny for gender-based discrimination. Comprehensive equal treatment of women under the law is a relatively recent phenomenon—history and tradition should start with their full emancipation.
Fifth, I agree with Charles’ that exceptions to abortion laws should be made for victims of rape and incest. Unfortunately, that is not the law in Texas. Instead, a woman must not only live with the agony of the heinous crime but also the resulting pregnancy.
MOSTER 2
Rick starts out with the statement that persons who support Roe are not “pro-abortion.” Although anecdotal, I have never encountered a Roesupporter who is not pro-abortion (have you?). This wrongfully decided case has been the centerpiece of the abortion industry and its proponents.
I am also unpersuaded by Rick’s observation, “that the Constitution does not mention abortion is hardly extraordinary, having been written by men in the 18th Century.” That is most certainly the case, but does not provide any justification for inserting non-existing liberty rights via the artifice of “Judge-made Law.” The Constitution was never intended to be a stagnant compact and included provisions allowing for its modification over time via the amendment process. In fact, the very existence of the 13th Amendment which abolished slavery in 1865 and the 19th Amendment granting women the right to vote (1919) are a testament to the validity of the amendment mechanism and the ability of the Constitution to remain vital and modern. Given this legal predicate, the gender bias of the Founders as alleged by Rick is irrelevant. The Constitution is a “living document” and can be amended at any time to address contemporary concerns. You don’t go around the back door and rewrite its provisions by judicial fiat. That is precisely why Roe was wrongfully decided and properly overruled.
I agree with Rick’s assessment that the Supreme Court has been inconsistent with its incorporation of so-called “liberty rights” based on the existence of the Due Process Clause of the 14th Amendment. Although the cases cited by the Court in Dobbs were correctly applied, the test employed allows for the circumvention of the express language of the Constitution and negates the utility of the amendment process in the first instance. In my view, the Court should abandon this exercise altogether, and apply a formalistic interpretation of the Constitution as advocated by the late Justice Antonin Scalia.
Fundamentally, the potential legalization of abortion can certainly be addressed through the amendment process. Pro-abortion interests have every right to lobby their state legislators and members of Congress to pass a new amendment to the Constitution which guarantees abortion rights. For the record, I would vigorously oppose such a course of action but not the right of American citizens to exercise their Constitutional rights. However, Roe needs to be recognized for what it was – an illegal end-run around the Constitution.
This article originally appeared on Lubbock Avalanche-Journal: It's debatable should Supreme Court have overturned Roe decision
