Texas makes no bones about its new abortion law, asks Supreme Court to overturn Roe v. Wade

October 22, 2021 • 9:15 am

I received a link to this article in an email from Esquire Magazine, which baffles me because I never read the thing and never asked for alerts. Nevertheless, I read the very short article, in which author Charles P. Pierce shows that the draconian new Texas anti-abortion law is explicitly designed to get the Supreme Court to overturn Roe v. Wade. As you know, that law allows abortion in the first and sometimes second trimester of pregnancy. And you may remember that the case was decided in 1973 by a 7-2 vote on the grounds that the the Due Process Clause of the Fourteenth Amendment confers a “right to privacy” that protects a woman’s choice to have an abortion.

Texas’s law, which protects all fetuses that have a heartbeat, even those resulting from rape and incest, is manifestly unconstitutional (heartbeats start about six weeks in), and yet has been affirmed by appeals courts. (The law also is supposed to be enforced by citizen vigilantes.) It’s now before the Supreme Court, with the Dept. of Justice appealing for the Supremes to strike it down. The Court then asked Texas to answer the DoJ’s filing, which is the subject of Pierce’s column.

You can read his piece by clicking on the screenshot, but also be mindful that there is an antiabortion law from Mississippi scheduled to be heard by the Supremes in December. That case, Dobbs v. Jackson’s Women’s Health Organization, is explained by BallotPedia:

The newly-enacted [Mississippi] law prohibited abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities. The U.S. district court granted summary judgment in favor of the plaintiffs, holding that the law was unconstitutional, and put a permanent stop to the law’s enforcement. On appeal, the 5th Circuit affirmed the district court’s ruling. Click here to learn more about the case’s background.

This violates Roe v. Wade in prohibiting almost all abortions during the second trimester. If the Supreme Court were to reverse the Fifth Circuit’s affirmation of the district court ruling, then it would be overturning—or at least well on the way to overturning—Roe v. Wade.

Now, about the Texas law:

Pierce quotes from page 49 of Texas’s response to the DoJ, and adds this:

On Thursday, Texas filed its answer to the administration’s request that the Supreme Court block the draconian new Texas anti-choice law. In that answer, toward the end, the kitty comes screeching from the burlap.

The federal government criticized Texas for not “forthrightly . . . asking this Court to revisit its decisions.” Texas has done so now.

Despite the Court’s hope that its decision in Casey would “call[] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” abortion remains a divisive issue. There will always be those who deem abortion “nothing short of an act of violence against innocent human life.” Consequently, there will always be States who seek to protect unborn life through their laws, and there will be those who seek to challenge such laws, unless and until this Court returns the question of abortion to where it belongs—the States.

If the Court decides to construe the federal government’s application as a cert petition, it may also construe this response as a conditional cross-petition on the question whether the Constitution recognizes and protects a right to abortion and whether the Court should reconsider its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

Pierce’s interpretation, which isn’t hard to discern, is this:

Texas is saying that if the Court takes up the administration’s case against a Texas law that essentially repeals Roe in practice, it may consider Texas’s response to be a request that the Court repeal its previous decisions on the subject outright. They don’t care about the gender gap anymore. They don’t really see politics that way anymore. Qui audet adipisciturgoes the saying.

I don’t think that Texas has been this explicit before, but of course we all know that although most Americans favor Roe v. Wade, religionists and Republicans in particular (there’s substantial overlap) want that ruling in the dumpster. Below are the latest Gallup statistics on what Americans feel about the 1973 decision. Only 32% think that Roe v. Wade should be overturned, while nearly twice that (58%) don’t want it overturned.

Now of course the Supreme Court is supposed to rule on Constitutionality, not popular support, but given that the Court previously ruled 7-2 in favor of a right to abortion, overturning the law now would be a severe violation of stare decisis. It will be an interesting year for the Supreme Court, but I’m not optimistic.

50 thoughts on “Texas makes no bones about its new abortion law, asks Supreme Court to overturn Roe v. Wade

  1. Of course all this discussion of all social issues in the hands of a few unelected judges would be useless if we had a congress. That’s all the comedy I have on this today. A full return to the dark ages is all the cult wants. It is a country full of morons.

  2. It’s not just Roe they’re gunning for, it’s Griswold. And with the current court makeup, they might just do it.

    1. Roe is built on Griswold, just as Planned Parenthood v. Casey is built on Roe. If SCOTUS determines there is no constitutionally protected right to privacy regarding matters of reproduction, so go all three.

      1. Indeed, and also Lawrence v. Texas, no? I’m feeling very grim about the whole thing. Actually purchased myself a t-shirt with a play on the Gadsen flag where the snake is a uterus. Do you think they might go this far?

        1. Were the Court to overrule Lawrence v. Texas, it would also invalidate Obergefell v. Hodges, which would throw the nation into chaos, what with all the same-sex marriages that have taken place in reliance on that decision.

          I’m sure Chief Justice Roberts would rather not go there (even though he wrote a stinging dissent in Obergefell), and I think some of the other conservative justices would just as soon avoid it, too . But if the issue were thrust upon the Court (recall that only four votes are required to grant certiorari to review a case) the votes are probably there to overrule it. (I suspect that justices Thomas and Alito — and perhaps one or two of the Trump appointees — would be licking their chops at the chance.)

  3. ”even those resulting from rape and incest”

    I’ve never understood why that is mentioned in such discussions, or why there are laws with such exceptions. In the former case, it seems to be to add “and that shows how really evil the law is” while in the latter case it indicates that abortion is OK in some cases but not in others.

    Since there are otherwise no exceptions for murder, except self-defense (not in general but to save your or another life, which doesn’t apply here except in “save the life of the mother”, which Texas probably does allow), then if one believes that abortion is murder, then it would be illogical to have such exceptions. If one does not believe abortion is murder, then why forbid it but have exceptions in such cases; again illogical (it should just be allowed in general).

    Sure, disagree with the other side, but no progress will be made by pretending that they have motivations (“see, they just want to punish women”) which most of them don’t. (I’m sure that most anti-abortion folks really believe that it is murder.) That makes as little sense as the “rape is not about sex; rape is about power” trope which Pinker deconstructed so well.

    1. It doesn’t really matter what their motives are, they are wrong. You take a very simple idea – that women have a right to control their own body and medical interest and turn it into a court case. How about if men got pregnant? There would be abortion clinics on every corner. How about if men had to take care of the non aborted? Rap your court case around that.

      1. Yes, I agree that the motives are wrong, but what do you want? Do you want to make progress? That can be done only by convincing people, and claiming that they have a motivation other than the one they have is not a good place to start.

        As to your counterfactual claim, it’s a common trope, but I seriously doubt it.

        The idea that this is a man-against-woman debate is absurd. There are more women than men in Texas; they have a majority; why don’t they all vote Democrat? The world is not simple.

        Of course, anyone who claims “my body my choice” should support the legalization of prostitution for the same reason; not all do.

    2. The abortion exceptions for rape and incest are based on no policy or doctrinal analysis; they are strictly political, meant to make abortion bans more palatable to those sitting on the fence.

      The camel has its nose under the tent flap. An abortion ban exempting rape and incest pushes the camel in past its first hump. (A complete abortion ban pushes it past the second, and a constitutional amendment conferring “personhood” on fetuses puts the camel entirely inside our tent.)

    3. Further, any exception for rape or incest (which is a type of rape) raises the question of how a rape victim would mount a successful defense. What would the standard of evidence be in this case? A conviction? This seems like an undue burden on the woman who is being tried since the conviction rate is so low on rape. Exceptions for rape and incest seem to be a form of empty promise, a way for lawmakers to say “see, we are not so heartless after all.” But then it also shows that they think that any other reason for an abortion is a matter of excusing wanton sex without care.

      I’m firmly in the camp that as men we have no business debating the need for an abortion nor making it illegal, since we don’t bear the burden or risk of carrying a fetus to term. It should be a matter between a woman and her doctor, or whoever else she decides should play a part in the decision.

    4. About a week ago, the Dallas newspaper had an article about a program which helps children survive rape and incest. It featured seven twelve-year-olds who were pregnant and could no longer get an abortion in Texas.

      Even if you believe that abortion is wrong, these cases demonstrate that the mothers, who are risking their lives and their physical health to carry pregnancies to term, are worthless in the eyes of the proponents. So, if you are supposedly “pro-life, you are STILL choosing one life over another one.

      What exactly are we going to do with twelve-year-olds with babies? They are not exactly in a position to “get a job”. Are we going to return incest victims back to their perps? Do we (as Texas does) grant visitation rights to the perps? If they die during childbirth, these cretins write it off as “God’s will”, and if they survive with damage to prevent them from ever reproducing when they want to, it’s still “God’s will”.

      The astonishing level of cruelty in this situation belies their supposed “concern” for the unborn. They DO have motivations other than the preservation of life.

      L

      1. I believe abortion is ‘wrong’, but forcing a woman to complete an unwanted pregnancy is even ‘wronger’. The least of 2 evils kind of choice.
        I think that striving to reduce the number of abortions to a minimum is the best we can aim for. We’ll never eliminate it completely, but prevention is so much better than remedy.
        And we all know what reduces the number of abortions: all things that reduce the number of unwanted pregnancies. That is not just good sexual education and availability of contraceptives, but also things like good general education of women, and empowering women. The Hitch saw that clearly too, albeit in the context of reducing poverty.

        1. While I disagree with you here in that it is ‘wrong’, (tbf I can’t know exactly what you mean here), I suggest you do not have any abortions or perform any in that case.

          As to the rest of your points I generally agree.

        2. International research shows that there are actually MORE abortions in countries that forbid abortion completely. Making abortion legal doesn’t increase the number of abortions, it decreases the number of women that die from them. The reason for that is obviously that so many women have to rely on back street abortionists. Further, those that rely of back-street abortionists are mainly poor. The wealthy will just travel to another state.

          The reason making abortion legal decreases the number of unplanned pregnancies is that it usually goes hand in hand with better education around contraception.

          And all those who think this isn’t an anti-women thing are wrong imo. There are a lot of extreme right-wing religionists in the US (and elsewhere) who are little better than groups like the Taliban when it comes to women’s rights. They believe men should be in charge of “their” women, by which they mean their wives and daughters.

          Also, saying a foetus has a heartbeat at 6 weeks is misleading, because there is no heart at that point. The ultrasound is just detecting electrical activity from cells that aren’t yet a heart.

          I could go on. I’ve been trying to write a post about the Texas law for several weeks, and have written about forced-birth legislation before.

        1. I agree completely, which is exactly my point. All the guff about sincere belief that abortion is murder sounds good, but is a load of bull. You can debate all the legal nits all you want, but these are CHILDREN. They are already here. The anti-abortion people are prioritizing a clump of cells over these girls. That choice needs to be highlighted, over and over.

          L

    5. I think most people, even most anti-choice people, understand that it would be torture for a woman to carry a pregnancy resulting from rape or incest. But in all the other cases – it is presumably the woman’s ‘fault’. So, we are okay with torturing women if we think they deserve it, but not if they don’t deserve it. Obviously the intellectually consistent opinion is no exceptions, but as icky as abortion makes some people feel, they know it isn’t actually baby-murder.

    6. There is some good argument there, although I do not agree.
      It has never been shown that criminalising abortions leads to less abortions. We have good reason to believe that abortions will just go underground, see the Romania saga.
      What actually has shown to reduce the number of abortions is good sexual education combined with easy access to contraceptives. This is well established, one cannot claim ignorance if one studies the subject, even if perfunctory.
      Since the ‘pro life’ (anti legal abortion) advocates are generally not really known for climbing on the barricades for good sexual education and availability of contraceptives, I might be forgiven thinking that reducing the number of abortions is not their primary motive.

      1. Their goal is not to reduce the number of abortions by any means, especially if it involves sex education and so on, since in their view premarital sex (and even some forms of marital sex) are almost as bad as abortion/murder. Rather, their goal is sexual abstinence. I certainly don’t agree with their goals, I’m just saying that caricaturing the opponent is not a good tactic.

    7. Agreed Philip. That constant refrain about rape/abortion has never made sense to me, given the fundamental issue of the abortion debate, which concerns the very status of a fetus, it’s possible “rights” as a “human” etc.

      It would be as strange as denying people who were born of rape the same human rights as those who weren’t. A fetus conceived from rape either has the same human status and rights as one conceived from consensual sex or it doesn’t.

      I’m not weighing in on the answer here…I lean towards pro abortion. It’s just that the common reference to “even in cases of rape” seem more like an emotional appeal to tip the scales rather than a consistent argument.

      1. The argument for exceptions in cases of rape & incest are not necessarily inconsistent. Even this ridiculous Texan law does not view the rights of the fetus as absolute. The 6 week time limit is largely arbitrary, it could have been four or eight. Why does the law afford a woman full rights before that time, but zero rights after? Yes I know they vaguely relate to heartbeat or some other developmental milestone, but that doesn’t stop it being total bollocks. This demonstrates that the arguments for fetal rights are not absolute, even if the law’s backward supporters profess that they are.

        Forcing a woman to bear a child from rape is medieval in cruelty and wickedness. I’m no lawyer, but it seems to me an exception is totally consistent in regard of this particular issue. Its also consistent with other parts of the law – we make exceptions for a battered women who kills her husband.

        The justification for an exception is clear – the avoidance of intolerable suffering by a vulnerable woman who was recently raped. Forcing this on someone is inconsistent with a civilised society. But this law has nothing to do with civilisation, fairness, human rights or compassion. It’s about religion-driven misogyny and paternalistic control of women, by sexually obsessed and repressed cavemen.

        Anyone who is of the opinion they can and should force a woman to have a baby is a contemptible, bullying, controlling POS who belongs in another century. The fact that we are even having these debates in the US of the 21st century beggars belief.

        1. I understand the justification for the exceptions. My point is that it is logically inconsistent to support them and at the same time claim that abortion is murder. The battered woman killing her husband is a red herring: if it is self defense, then it is always OK, regardless of their relationship; if not, it is not an excuse which gets her off scot-free.

  4. Who was Roe? Jane Roe is like John Doe, a placeholder for the anonymous plaintiff, though the name is now known.

    When asked “Roe vs. Wade”, Robin Williams replied “I would rather swim”. 😀

  5. I haven’t subscribed to Esquire in decades. (It was a hotbed of The New Journalism under editor Harold Hayes in the 1970s.) But I still try to catch the columns of Charlie Pierce, who’s one of the most mordant political analysts around.

  6. Texas’ shameless stand on this is nothing but a bald faced attack on women and especially on poor women. The rich will never have any problem getting an abortion if they so want.

  7. “In that answer, toward the end, the kitty comes screeching from the burlap” – indeed! (And a great phrase.)

  8. I think the Supreme Court WILL use this an a reason to overturn Roe v. Wade. Alito and Thomas have made statements that indicate they don’t give a hoot about stare decisis. I think ultimately it will backfire. Congress will draft legislation that is less vulnerable to such court challenges (I’ve heard more than a few legal sources say Roe v. Wade was badly decided, regardless of whether they support it or not. It’s a bad case to hang such rights on.). I think this because polls consistently show that most Americans think abortion should be legal.

    But, you never know. We may just have some states where a person can legally obtain an abortion and others where it is outlawed. That will be harmful to many people. But, hey — Freedom!

    1. Congress will draft [abortion-rights] legislation that is less vulnerable to such court challenges …

      A tough row to hoe so long as the senate filibuster remains intact — and so long as there are at least 41 Republicans (excluding Lisa Murkowski, Susan Collins, and, perhaps, Shelley Moore Capito) in the United States senate.

  9. I’m no legal expert but I would think that the Supremes will reject the Texas abortion law based on its bounty structure rather than its actual abortion elements. Being legal scholars, they won’t like the state passing on enforcement to any citizen who wants the money.

    1. The Supremes might not like it, but to overrule it, they need a constitutional right to hang their jurisdictional hat on. If the right to privacy goes by the boards, it’s difficult to see what it would be.

      At that point, under Our Federalism, enforcement of a state statute becomes a matter of state law, on which state courts have the final say.

  10. I think it would be nice if someone used the act to sue the state of Texas the next time it executes someone, since presumably that person has a heartbeat, and that’s all that makes something a human life. Actually, any abattoir would be vulnerable to that. Of course, I know, the law specifies abortion, and such cases wouldn’t actually succeed, but it might be interesting if a lot of people filed such suits.

  11. My prediction (as a constitutional law professor who has spent most of my career studying the Supreme Court and its cases): The Court will allow the Texas law to continue in effect, but on technical procedural grounds (standing, lack of imminent harm to the US, whatever) without reaching the merits of the abortion ban itself. Eventually the case will return to the Court on the merits, but probably not until after October 2022 — not this (October-June 2021) term. The Mississippi 15-week ban will be argued in December, which means a decision by the end of June. The Court will uphold the law, but say that it is doing so under Roe & Casey (perhaps slightly tweaked), and will not take Mississippi’s invitation to overrule Roe. Then next term, when the Court finally takes up the Texas case (or some other state’s ban) on the merits — THEN it will overrule Roe. Why the delay? Because the conservative Justices don’t want to overrule Roe before the 2022 midterm elections, because that would create a backlash that would likely end Republican chances of taking back either the House or the Senate.

    1. I wonder why do they even require a law degree to get to the supreme court. They are all essentially catholic politicians of the conservative order.

    2. Hi, Prof. Sherry,

      I think upholding the Mississippi 15-week ban in Dobbs without overruling Roe will require a tricky bit of business. I don’t see there being a majority opinion in the case, simply an announcement of the result, probably in an opinion by Roberts, joined by either Kavanaugh or Gorsuch, with a concurrence in the result by the four conservatives who want to overrule Roe outright — I assume there are at least four justices who want to overrule Roe; why else grant cert. in the case? Dobbs doesn’t raise any other issues crying out for resolution — and dissenting opinions by the three liberals.

      If and when the Court does overrule Roe — be it in the Mississippi case, or in the Texas case, or in another case — I would not be shocked to see Chief Justice Roberts join the majority in doing so. I think Roberts’s preference would be to chip away at Roe, likely by upholding the kind of so-called TRAP (viz, “targeted restrictions on abortion providers”) laws that were invalidated in the 2016 decision Whole Woman’s Health v. Hellerstedt, from which Roberts dissented.

      But if it’s a fait accompli that there are five votes to overrule Roe, Roberts (who is, after all, an abortion opponent) might make it a sixth for two reasons: First, he may find it more seemly that a nearly half-century old precedent like Roe be overruled 6-3 rather than a by a naked 5-4 majority. Second, and more importantly, being in the majority would allow Roberts to assign the writing of the majority opinion. I assume he would assign it to himself and write what he viewed as the most temperate opinion possible under the circumstances, concentrating on why Roe v. Wade was misguided when decided and why the principles of stare decisis do not stand in the way of its overruling now.

      If the Chief isn’t in the majority, the opinion-writing decision would fall to Clarence Thomas, as the senior justice in the majority. He would probably keep the opinion for himself and write the type of anti-genocide, quasi-religious rant be began in his 20-page opinion dissenting from the denial of certiorari in Box v. Planned Parenthood of Indiana and Kentucky. I can’t imagine the Chief would want THAT to be the Roberts Court’s main legacy.

      Regards.

      1. I agree with your analysis about why Roberts might vote to overrule Roe, eventually. But I disagree about Dobbs. First, when they granted cert, Mississippi was not asking them to overrule Roe/Casey. And upholding the Mississippi law wouldn’t be that hard: They’d have to tweak Roe/Casey to say that “viability” isn’t a magic bullet — that the undue burden test applies throughout the pregnancy. Then, because most abortions are performed before the 15th week, they can conclude that so few women are affected that it’s not an undue burden (and, per Roberts, you don’t have to consider whether there are any benefits, just how much of a burden).

        1. I agree, but do you think there could be a single opinion saying those things that a majority of the Court would join, so as to constitute binding precedent? If what you predict is what the Court eventually does in Dobbs, I foresee a badly fractured court with numerous justices writing opinions that merely concur in portions of the result, while dissenting from other portions — specifically, that the most conservative justices will concur that the state can prohibit a woman from obtaining an abortion pre-viability and the liberals concurring in upholding the “undue burden” standard. The most conservatives justices would dissent in part by saying that the Court should go further and overrule Roe, while the liberal justices would dissent in part by saying that Casey should be upheld in its entirety.

          We should keep in mind, too, that, to the extent that Dobbs in any way upholds the Roe/Casey line of cases, it makes it that much harder to overrule those cases outright any time soon under the stare decisis doctrine.

  12. “Texas’s law, which protects all fetuses that have a heartbeat…”

    We have to get away from this language when talking about Texas’s 6-week abortion ban. First off, at six weeks, it is an embryo about the size of a grain of rice, not a fetus (an embryo is technically a fetus at 8 weeks). And it is not a “heartbeat” either. At 6-weeks, the cells that eventually become the sinus-node (i.e. pacemaker) begin to develop. These cells emit an electrical charge. It is not a beat or a heart, and once these electrical charges can be detected, it still doesn’t mean the heart (or baby) will even be viable.

    What I find most ironic is that this regressive law uses the advanced technology of ultrasound to detect the electrical charge. This technology hasn’t been around very long, and it’s this “new” technology that allows an anti-science political party to create this draconian law.

    1. And the tide began to turn 40 years ago when life magazine had a big picture spread of a fetus in utero. A given technology, for all the good it does, also can become yet another unintended consequence.

  13. I’ve long supported abortion, but Roe v. Wade, which purports to have found a right to privacy in the “penumbra” of the Fourteenth Amendment (which is about due process and equality under the law), and then found that this right to privacy protects the right to get an abortion (which seems rather unrelated to privacy as normally understood and more importantly is nowhere near consistently applied), has always seemed to be about as much of a stretch as the Court’s claim that growing wheat on your own farm for your personal consumption can be regulated by Congress under the Interstate Commerce clause, because by not buying your wheat from the market, which could potentially include out-of-state sellers, you are affecting interstate commerce.

    In neither case was this the intention of the authors of those parts of the Constitution. Roe v. Wade is a bad judgement, and another case of the court legislating from the bench. Although I support the end, I don’t support the means. Congress should pass a law, or amend the Constitution if necessary, to protect abortion. The Supreme Court should not invent legal fictions.

    1. The Supreme Court should not invent legal fictions.

      IANAL, (and holler at Ken who is!), but I don’t believe the penumbra and its reach is a legal fiction. And if I’m misreading your point, apologies. Someone do correct me if I’m wrong here.

    2. The “penumbras” language comes from Justice William O. Douglas’s opinion for the Court in Griswold v. Connecticut, the case that guaranteed married couples access to contraception. Those penumbras, according to the terms of Justice Douglas’s opinion, arise not from the 14th Amendment, but from the Bill of Rights itself (i.e., the first 10 amendments).

      Are you prepared to say that the US constitution guarantees nothing with regard to an individual’s bodily integrity and control? Keep in mind that a constitution that permits the government to prohibit a woman from having an abortion would also permit the government to force a woman to have an unwanted abortion. Is that your view of the US constitution?

      In addition, the constitution has been held to guarantee numerous other rights not expressly mentioned in its text. The right to travel freely between states, the right to marry, the right to associate freely with other individuals — all these and others are products of Supreme Court case law. Do you think the cases guaranteeing these rights were all wrongly decided?

      Finally, even if we assume, solely for the sake of argument, that Roe v. Wade was wrongly decided, there are sound prudential reasons that militate against overruling a precedent that has existed for half a century and that has been reaffirmed numerous times in the ensuing years, under the doctrine of stare decisis.

      1. They seem to have hung a lot of their reasoning on the Fourteenth Amendment: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is…” Or as Wikipedia’s summary puts it: “… the Supreme Court [ruled] that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a ‘right to privacy’…”.

        It depends what you mean by “bodily integrity”. The Constitution guarantees the right to be secure against unreasonable searches and seizures, and requires due process before a person can be punished, etc. It doesn’t say anything about abortion, or the snorting of cocaine, or refusing vaccination, or other things that might fall under a broad conception of bodily autonomy. If the state can force one medical procedure, it can presumably force another, as long as it can reasonably articulate a “compelling state interest”. As the court said in Roe:

        A State may properly assert important interests in … protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. … the right of personal privacy includes the abortion decision, but … this right is not unqualified and must be considered against important state interests in regulation.

        Neither the Fourteenth Amendment nor the Ninth seem to provide any clear protection that I can see. From the Fourteenth: “… nor shall any State deprive any person of life, liberty, or property, without due process of law.” Well, if there is a law against abortion, and the law is duly followed and not unconstitutional, then I don’t see how that applies. From the Ninth: “The enumeration … of certain rights, shall not be construed to deny [other rights]…”. It’s of course true that the Constitution guaranteeing certain rights does not imply that no other rights exist, but neither does it imply that all rights not explicitly denied exist. Rather, one would have to look to tradition, long-standing practice, etc. to decide the question in an individual case.

        I don’t see the right to get married (at least in the normal man-woman way) or the right to freely associate with other people as being products of the Supreme Court. They were traditions that date back to prehistory, and the right to travel between states was also long established. If the Supreme Court found that the Constitution guaranteed them under some weird-sounding logic such as a right to privacy in the Fourteenth Amendment, I’d disagree with their reasoning but I wouldn’t disagree with the existence of the rights.

        In the case of abortion, it was illegal in most of the country at the time Roe v. Wade was decided. It was not a long-standing right respected throughout the land, but a contentious action banned in most of the land. (Whether it should be a right is a different question.) In such a case, and lacking any clearly relevant text in the Constitution itself, I think it’s the job of Congress (if the question falls under the federal governments enumerated powers, or if they want to create a new federal power via amendment) or of the individual state legislatures (otherwise) to decide the question, not the Supreme Court via contorted and likely motivated reasoning.

        You may be right that, having stood for almost 50 years, perhaps Roe v. Wade should not be overturned abruptly, even if wrongly decided. But I do think that wrongly decided cases should be gradually phased out and not used as precedent. The Court doesn’t often change its mind; rather old minds retire and new minds are appointed. Many decisions now recognized as bad nonetheless lasted decades before being overturned. In this case, I wish the Court would say “Hey Congress, you’ve got X years to get your act together and decide the issue.”

  14. From the Oxford dictionary: “pe·num·bra /pəˈnəmbrə/ noun 1. the partially shaded outer region of the shadow cast by an opaque object.”

    Discussion of the basis for Roe v. Wade, or anything else in US law, bears a certain resemblance to medieval or Talmudic disputations about the meaning of passages in holy texts. The reason for this is plain: governance in the US always has to be related to words in a holy text, namely the constitution.
    This aspect itself gives rise to the curious doctrine of “originalism”, seemingly based on the exercise of long-distance, backwards-in-time mind-reading of individuals dead long ago.

    How much simpler it would be if governance could be discussed in the somewhat more straightforward terms of philosophy, utility, history, and common law. How do the High Courts of Justice of such places as England and Wales, France, or Ireland, manage to function without such intense recourse to the
    interpretation of an ancient text?

Leave a Reply