The Independent View: Roe v. Wade and other lies

Background

On January 22, 1973, the Supreme Court issued a 7–2 decision holding the Due Process Clause of the Fourteenth Amendment of the Constitution provides a fundamental “right to privacy,” which protects a pregnant woman’s right to an abortion. The Court also held the right to abortion isn’t absolute and must be balanced against the government’s interests in protecting women’s health and prenatal life. The Court resolved these competing interests by announcing a pregnancy trimester timetable to govern all abortion regulations in the United States. The Court also classified the right to abortion as “fundamental,” which required courts to evaluate challenged abortion laws under the “strict scrutiny” standard, the most stringent level of judicial review in the United States.

The Supreme Court’s decision in Roe was among the most controversial in U.S. History. In addition to the dissent, Roe was criticized by some in the legal community, including some in support of abortion rights who thought Roe reached the correct result but went about it the wrong way, and some called the decision a form of judicial activism. Others argued Roe didn’t go far enough, as it was placed within the framework of civil rights rather than the broader human rights. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision; polls into the 21st century showed a plurality and a majority, especially into the late 2010s to early 2020s, opposed overruling Roe. Despite criticism of the decision, the Supreme Court reaffirmed Roe’s “central holding” in its 1992 decision, Planned Parenthood v. Casey. Casey overruled Roe’s trimester framework and abandoned its “strict scrutiny” standard in favor of an “undue burden” test.

In June 2022, the Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization on the grounds the substantive right to abortion wasn’t “deeply rooted in this Nation’s history or tradition,” nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe. This view was disputed by some legal historians and criticized by the dissenting opinion, which argued many other rights — contraception, interracial marriage, and same-sex marriage — didn’t exist when the Due Process Clause was ratified in 1868, and thus were unconstitutional by the Dobbs majority’s logic. The decision was supported and opposed by the anti-abortion and abortion-rights movements in the United States, respectively, and was generally condemned by international observers.

My personal opinion is the right to abort rests with the mother. If there’s a price to pay, it will be assessed on judgment day. That said I read a statement in a column last week some justices swore under oath they wouldn’t overturn Roe vs Wade. This is simply NOT TRUE. The text below is a record of what was said. It appears some refused to comment, while others skirted the issue, but no one said they wouldn’t overturn the ruling.

Justice Samuel Alito, who penned the majority’s opinion overturning Roe, declined to say in his 2006 hearing Roe was “settled law,” calling it an “important precedent” that’s “protected,” but refused to classify it as something that “can’t be re-examined.”

Justice Clarence Thomas declined to take a position on Roe in his 1991 hearing, saying he has “no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion.”

Justice Neil Gorsuch said in 2017 “a good judge will consider (Roe) as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other,” and said precedent means the court “move[s] forward” after it decides a case, but didn’t say he wouldn’t overturn Roe.

Justice Brett Kavanaugh said in 2018 he “does not get to pick and choose which Supreme Court precedents I get to follow” and that he “follow[s] them all,” and Roe is an “important precedent” that has been “reaffirmed many times.”

Justice Amy Coney Barrett said in 2020 she didn’t believe Roe is a “super precedent” that “no one questions anymore,” but “that does not mean that Roe should be overruled She said that she would “follow the law of stare decisis” and respect for court precedents if abortion-related cases came before her, but neither she nor Kavanaugh expressly said they wouldn’t vote to overturn Roe.

Note: Writing this column is laborious for me because I have a limited vocabulary. I have stated before I like to write at the 6th grade level because everyone can easily understand and Readers Digest decided this was best for most readers. I learn a lot from the research so …..Decisis is the legal principle of determining points in litigation according to precedent.

Bill White is a Retired Air Traffic Controller/ Commercial Pilot who lives in Springville.