Roe v. Wade should be overturned.
There, I said it. Got it out of the way.
Now take a deep breath. Before you indulge that gut reaction you just had — be it rage or righteousness — let your brain maintain control for just a few more minutes and let me explain. Whoever you are, you’re going to have to get used to talking about this issue, because it’s not going away. The current discourse is broken and has devolved into vicious name-calling, foolish rhetoric, and bitter resentment. The state of the law around abortion isn’t much better. Odds are we will be dealing with this issue again soon in a big way; with Amy Coney Barrett (seen as a vote to overturn Roe) the likely Supreme Court nominee, it’s best to be prepared on such things.
Let’s start with history. Roe v. Wade was a Supreme Court case decided in 1973 that struck down a number of abortion laws as unconstitutional. The Court found that the Due Process clause of the 14th Amendment contained a right to privacy within it. The Court classified a woman’s choice to have an abortion as a fundamental right, though not one completely immune from government regulation. After a case called Planned Parenthood v. Casey, the current legal standard is that a woman has the right to an abortion up until the point of viability of the fetus, at which point the government may impose some restrictions — so long as those restrictions don’t constitute an undue burden. Almost all of the litigation since Casey has focused on which sorts of things are an undue burden and which are not. Each case takes years to wind its way to the Supreme Court, and each time it gets there we have another major moment of uncertainty. The fanfare and pageantry of the fight has largely subsumed the issue itself. Since Roe, the pop culture importance of Supreme Court justices has gone through the roof, and their nominations/confirmations have gotten increasingly controversial and dramatic, depending on their judicial ideology. In the greater scheme of the American culture wars, Roe is arguably the biggest battle.
The battlefield is a familiar one. In general, Republicans have historically been against all abortion — life begins at conception and anything beyond that is murder. Within the pro-life camp is the laudable ideal that all life is sacred, which is hard to deny — human life especially. It has also always been the purview of the state to protect children (a doctrine known as parens patriae) because they can’t protect themselves and sometimes it’s the parents they need protection from. State law has always been the authority that assumes the protection of children. In their fervor to protect the life of the unborn, however, Republicans often overlook the life, well-being, and autonomy of the mother.
Conversely, Democrats tend to take a much more expansive view of abortion. Some argue that the life and bodily autonomy of the mother is paramount — that at any point up until birth, the mother must have complete control over that which she supports and nourishes as part of herself — even if it means a distasteful late-term procedure. This argument is also compelling — our nation was founded on the bedrock principle of individual liberty, self-determination, and freedom from government intrusion in our lives and families. In their fervor to protect the autonomy of the mother, however, these Democrats often overlook the quintessentially helpless human life — or something extraordinarily similar — that has its own bodily autonomy and nobody to speak for it.
Inevitably, Republicans accuse Democrats of infanticide and Democrats accuse Republicans of being anti-woman. The more the fighting goes on, the more some Republicans become truly anti-woman and the more some Democrats truly support infanticide (or something similar). Rinse, repeat, and the tension reaches a fever pitch.
Neither position is truly sustainable in a functional society. The extremes of both arguments are absurd. On the one hand, immediately after conception, the creation that exists is just a clump of cells whose exact moment of formation is impossible to identify. At this stage, it is effectively indistinguishable from a normal menstrual cycle. Are we to prosecute every early miscarriage as negligent homicide? No, that would be absurd. On the other hand, the development of the fetus in the late term is almost indistinguishable from a born, human baby. Depending on how developed it is, it may be able to survive on its own well before it’s “ready” to be born. To kill that being that is, for all intents and purposes, a baby — most would agree is reprehensible. There are two fundamentally separate interests at stake when talking about abortion, the mother and the fetus. And those interests necessarily change over time. From a moral perspective, both have value and worth. Both need to be accounted for. This is the balance Roe attempts to strike: if the fetus can survive on its own (if it’s viable), then the state should have some say in protecting that being/person — protecting to some extent their right to not die. Before viability, when the fetus can’t survive on its own, extra deference is given to the mother who bears it and what she wants to do with her body.
This fundamental moral argument spills out into the political arguments. Republicans do everything they can to protect the unborn, usually by passing as many restrictions as might be deemed reasonable (or not an undue burden). Sometimes they’re done in good faith, sometimes they’re not.
Democrats express support for fewer and fewer restrictions on a woman’s choice, mostly choosing to keep the difficult decision between solely the woman and her doctor, especially where the health or life of the mother or fetus is in jeopardy. In some cases, this includes allowing elective abortions right up until the moment of crowning. These battles have been ongoing since 1973 and there’s no end in sight.
Back to the Roe decision. The original justification for the decision comes from a 1965 case called Griswold v. Connecticut, a case involving the right to contraception. This was the first case where SCOTUS found the “Right to Privacy” in the Constitution. It wasn’t until Roe that the Court decided the right lived in the 14th Amendment’s Due Process clause. Here’s what that clause says: “nor shall any State deprive any person of life, liberty, or property, without due process of law[.]” That’s the whole thing. The entire basis for the right to have an abortion.
Did you miss the part about having a right to privacy? You’re not alone. Instead of reading the Constitution and deciding what the plain meaning was, the Court in Griswold decided that these rights existed in the “penumbras” and “emanations” of the other provisions and rights the Constitution DOES protect. Justice Douglas found a right to privacy in what is essentially the subtext of the other, more explicit rights. Roe simply identified the supposed location of that subtext. That’s not how laws or constitutions are supposed to work.
Textualism is the idea that judges should elicit what the words of a law say, what they mean as written — then apply the law accordingly (this is not the same as Originalism, though they’re often found together in the wild). There is no room for what the law intends to say or what the drafters of the law meant to write (but didn’t). Clarity of interpretation begets clarity of purpose and stability of the rule of law. Laws need to be clear. In order to control people’s behavior, they need to say exactly what they mean to say and interpreted as they are written. Don’t kill people, don’t drive more than 70 miles per hour, don’t steal money from other people — all clear. If I write a law that says “don’t be disruptive”, what exactly am I prohibiting? If it’s not clear, it’s not useful. If it’s not clear, it creates more confusion. The Constitution is such an amazing document primarily because the powers are enumerated, not plenary. They outline freedom FROM government. Rather than saying the government has all the power EXCEPT…, it specifies the bedrock principles and limitations only. Everything else is for democracy to decide. It is, by its very nature, a NON-EXHAUSTIVE list of important things. It need not, and cannot, contain all the rights we may want people to have. That’s what legislatures are for.
The Due Process clause says nothing about a person’s right to privacy. It just doesn’t. It’s not there. As much as we may want it to be there, it’s not — and as soon as we start reading things into the Constitution that aren’t there, we start down a very dark path. What if tomorrow, the Court decided that the First Amendment contained a right to physical violence, so long as it was in protest of a political belief? You don’t like a certain person because of their beliefs? Burn their house down. Righteously. It’s not that different from burning a flag, which IS (and should be) protected. Both are symbolic speech. It’s less of a stretch than finding a right to privacy in the Due Process clause, but we all know that’s not what the First Amendment is about. Again, the importance of laws, both in making them and in following them, is their clarity and plain meaning. We look at what the text of the law says and that’s what we follow. Any other way of doing it warps the concept of rule of law. If a law or right is constantly open to interpretation, constantly in flux over what it means or how it should be followed — we’re not doing anybody any favors.
This is where I arrive at Roe v. Wade needing to be overturned. The right to privacy is a right that simply doesn’t exist in the constitution. Our constitutional understanding should reflect that. Believing it should be overturned does not require an opinion on the issue of abortion, however naive it may seem to say that. However, there are a multitude of political realities that must be acknowledged if Roe were overturned. In the short term, it would no doubt be messy. That said, if Roe were overturned, it would simply mean that each individual state would decide what their abortion laws should be. That’s it. It wouldn’t ban abortion unless the state legislature passed a law banning abortion. The same things as with any other right or law. Such a big event, however, would inevitably become a national issue. People would clamor for a federal law or even a constitutional amendment. This would be infinitely preferable to the status quo.
Right now, our understanding of abortion law consists of a single set of principles set out by 9 unaccountable, unelected people. Their principles are constantly litigated to determine their meaning and, every few years, if we’re lucky, we get a little more clarity. Putting all of the rights, all of the restrictions, all of the protection into law — drafted by elected legislatures, can remove all the uncertainty. It can confine the rancor to the ballot box rather than the kitchen table or the court systems. It eliminates the back and forth of whether things might suddenly change with a court decision. It supports the notion that legislatures create rights through the democratic process, not judges. Until Roe is overturned, the rights of people involved in the abortion decision — born and unborn (and don’t forget the doctors!) — cannot be acceptably articulated, planned for, or enforced.
So how does this apply to the current race?
In case you think that Trump is principled on this (or any) issues, check out this fun video from 1999 saying that he’s “very pro-choice” and “hates the concept of abortion” but would not ban it in the 3rd Trimester. That is quite a contrast from today, where he has vowed to nominate justices to overturn Roe and calls himself pro-life. Of course, Mike Pence has long been a pro-life crusader of the most extreme variety. Regardless of what Trump actually believes, his stance is solidly in the pro-life camp for the sake of today’s politics.
Biden is, not surprisingly, pro-choice. Despite his Catholicism, he now supports a federal law codifying the Roe standard. In the past, he has supported some moderate restrictions on abortion, even saying that Roe went “too far” when the decision was first released in 1973. He has never gone on the record in support of late-term (3rd trimester) abortion. He supports the viability standard of Roe and its codification.
Kamala Harris is much further left than Biden on the issue, perhaps for obvious reasons. She has a 100 percent rating from Planned Parenthood, and has repeatedly voted against abortion restrictions of all kinds. That said, she also wants to codify Roe.
One important clarification on Harris — she voted against the Born-Alive Abortion Survivors Protection Act last year, which would punish doctors who fail to provide medical care to a child born alive after an attempted abortion. This has led to attacks from the right that she is in favor of infanticide. This is ugly and misleading. That law would punish doctors with criminal liability in all situations for not doing everything they could to save a baby — whether hopeless or not. So this would include a situation where the baby could not survive and the only thing to do would be palliative care and time with the mother, rather than putting the baby in the ICU far away from the mother. That’s one example of the perverse incentives the bill would create, but this particular bill — spurred on by the stupid, though largely misinterpreted comments by VA Governor Ralph Northam — is essentially a gotcha presentation by Republicans to paint democrats as baby killers. This is clear — aside from the extreme rarity of this situation — given that there is already a 2002 Federal law on the books which protects babies born alive after an abortion, and ensures that they are given the care that any other person would be given, as appropriate.
Finally, even if you see abortion as a necessary evil, most would agree that fewer abortions is better. Few, if any, WANT to have an abortion. To quote Bill Clinton, “safe, legal, and rare” may be the answer. Though largely abandoned as a slogan these days, the numbers are interesting. Given Democrats’ support for expanded use, and access to, contraception, abortions go way down during Democratic administrations and way up during Republican administrations. See the attached thread, with citation to the Guttmacher Institute and the CDC.
So on this issue, maybe the best thing would be for Trump to get his nominee, overturn Roe, then have President Biden codify it back into law?