Overturning Roe v. Wade is a huge victory for democracy | Opinion
So there is now a great weeping, wailing, and gnashing of teeth throughout the land because the United States Supreme Court that created Roe v. Wade has now overturned it. The country is doomed. Well, no, it is not, and to the contrary, the opinion is a magnificent lesson in the limits of the court’s power, and the freedoms Americans enjoy.
In 1972, a majority of the justices of the United States Supreme Court, using judicial voodoo, legislated that under an ill-defined and non-constitutional right of privacy a woman had a limited constitutional right to an abortion.
In Dobbs v. Jackson Women’s Health Organization, the court’s majority said that no, there is no such national right. Does that mean there is no right to such a procedure? No.
Instead, if there is a right to terminate a pregnancy, it is created and defined at the state level. That is significant because the men and women who sit as justices on the nation’s high court were elected by no one and represent no one. Their opinions have the force of law only because we respect the court. That deference, however, has limits, as the court is aware of.
The 2022 opinion recognized that reality in overturning Roe. In doing so, it returned the power to create the right to an abortion to the people.
For example, rather than finding some national right to privacy in the air that surrounds the national constitution, the people of Florida adopted an explicit right to privacy in Article I Section 23 of the State’s constitution.
The Florida Supreme Court has used that state created right to protect the right to an abortion. The court’s opinion, relying on the state’s right of privacy, has much more authority than the gossamer thin logic of Roe v. Wade.
Florida, in short, does not have to create a right of privacy out of thin judicial air. The people of this state have voted to make it a part of the state’s fundamental law.
Thus, the High Court’s opinion is a huge win for democratic governments. The people, and not nine unelected men and women will determine the rights the people enjoy.
In 1789, Congress debated whether the national government should have a Bill of Rights. Some argued against adopting a national list of freedoms people enjoy. The states, they noted, were the primary source of rights for its citizens, not the national government. Hence, as the argument went, no national Bill of Rights was needed.
Dobbs agreed with that position. Let a free people elect those who will represent their interests determine whether there should be a right to an abortion. The 2022 opinion acknowledged that the nine men and women in Washington, who were hundreds of miles from Mississippi where the case originated, should not define what rights free people should have. That is for the people to do.
The 2022 opinion is a huge victory for democracy.
David A. Davis is a retired attorney living in Tallahassee, FL.
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This article originally appeared on Tallahassee Democrat: Overturning Roe v. Wade is a huge victory for democracy | Opinion
