Roe bypassed process to amend Constitution

The legal and constitutional issues in Roe, Casey and the Supreme Court’s leaked draft opinion are all about the Bill of Rights, the Fourteenth Amendment and the Tenth Amendment. Prior to the Fourteenth Amendment, the Bill of Rights applied only to the federal government. The legal issue became which rights in the Bill of Rights were incorporated into the Fourteenth Amendment and made applicable to the states? Over the years, the Supreme Court has incorporated almost all the Bill of Rights into the Fourteenth Amendment and applied those rights to the states. This, so far, is mostly uncontroversial.

The second legal issue is: Did the Fourteenth Amendment create additional substantive rights that are not listed in the Bill of Rights and the other amendments? The Supreme Court created a test for determining whether that is so: Is the right deeply rooted in our history and tradition and is such a right essential to our nation’s scheme of ordered liberty?

This test requires a historical analysis of the rights that existed in law as well as the federal Constitution and the state constitutions at the time the Bill of Rights and the Fourteenth Amendment were ratified. A personal right to privacy and emanating from it, a right to an abortion, are not such rights. In fact, almost all states made abortion illegal, and no state constitution or law created a personal right to privacy (nor did the federal Constitution) from which such a right could be inferred. For almost 200 years before Roe, the states regulated or abolished abortion outright.

Roe found no place in the Constitution or the amendments where such a right existed. Instead, the court argued the personal right to privacy and its accompanying right to an abortion came from the “penumbras” and shadows of the rights that are listed in the Constitution (relying for this reasoning on Griswold v. Connecticut, which found a personal right to privacy in the Constitution emanated from the penumbras of the Bill of Rights). That means the court can find any right it wants in the Constitution so long as five justices are able to discern the penumbras — divining truth from shadows.

Regardless of which side you take on the abortion debate, Roe is not your friend. It’s reasoning, coupled with Griswold, dramatically expanded the power of five justices to read into the Bill of Rights and the Fourteenth Amendment any right that they deem popular or wise. This is inconsistent with our form of constitutional democracy. We have a method for inserting rights into the Constitution; it’s called a constitutional amendment. That’s a democratic process and not the whim of five unelected justices with lifetime tenure.

MIGUEL RIVERA

Siloam Springs