Roe v. Wade and continuing divisiveness
That which was anticipated, predicted, and expected nearly 50 years ago is happening in the Supreme Court today. The right of a mother to terminate her pregnancy was adjudicated to be Constitutional in 1973 via Roe v. Wade. The term “abortion” quickly mutated into progressive terms on both sides: pro-choice and pro-life. No one wanted to be against anything.
Abortion has split America and divided Americans for decades even before Roe v. Wade, and will continue its divisiveness for the foreseeable future regardless of how the Court rules on Mississippi’s Dobbs v. Jackson Women’s Health Organization.
While extreme anecdotes abound on both sides of this life issue, perhaps a couple of questions need to be answered. Is it ever justified to end an innocent life? Plenty of laws on our books say, “No!” Yet, some have argued that a mother can justifiably terminate her pregnancy by killing her baby, and have given a number of reasons why. Since public opinion is so split over the justification of taking an innocent life, the Court, the legislature, or the people need to decide.
Even Justice Ruth Bader Ginsburg felt uncomfortable with the outcome. In May 2013, during a visit to the Chicago University School of Law, she said, “My criticism of Roe is that it seemed to have stopped the momentum on the side of change.” Michael H. Schill who moderated the visit, summarized Ginsburg’s remaining comments writing, “She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts.… Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.”
In 2018, the Mississippi Legislature passed the Gestational Age Act that essentially bans elective abortions after 15 weeks of pregnancy. The law goes to the heart of the question who decides. Ginsburg rightly noted that Roe was based only upon a right to privacy in the Constitution. Representing Jackson Women’s Health Organization, Julie Rikelman has argued that women are due special individual rights due to their unique roles in procreation. Needless to say, the Constitution does not give women special rights, nor does it address abortion.
Our founders recognized they could not anticipate all the issues or disputes that might arise. Therefore, they iterated our individual rights in nine amendments, adding the Tenth Amendment to cover their bases: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
No one knows how the Court may rule. It’s a long time until June 2022 when the Court plans to release its decision. If the Court lets the Mississippi law stand, it will essentially concur with Ginsburg’s thoughts “that abortion rights be secured more gradually, in a process that included state legislatures and the courts….” The three justices on the left have rejected that decision. What might the six justices on the right decide? Can at least five of them decide to let states and courts adjudicate questions of abortion at levels closer to the people?
Abortion is literally a life or death issue. It is way too important to be decided by nine justices, or any number of justices for that matter. Let the people decide.