Abortion decision ‘was egregiously wrong from the start’

Bob Unruh
WND News Center

The U.S. Supreme Court in a 6-3 decision on Friday overturned the 1973 abortion precedent set in Roe v. Wade, a move that now will return oversight of the nation’s lucrative abortion industry to the individual states.

The ruling, which had been leaked apparently by a court insider to reporters several weeks ago, said stare decisis, the doctrine of recognizing previous precedents, “does not compel unending adherence to Roe’s abuse of judicial authority.”

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and (related case) Casey have enflamed debate and deepened division.”

The court majority said, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ … That is what the Constitution and the rule of law demand.”

The court bluntly said, “The Constitution does not confer a right to abortion: Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

Rep. Jim Jordan, R-Ohio, ranking member of the House Judiciary Committee, summarized the years-long battle over Roe succinctly: “Life wins.”

The decision came in a fight over the Mississippi Gestational Age Act, which banned abortions after 15 weeks. Abortion industry interests challenged that, claiming it violated Roe.

The district court halted enforcement of the law, and the 5th Circuit affirmed, based on Roe.

The 6-3 opinion was authored by Justice Samuel Alito, and joined by Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Thomas and Kavanaugh filed concurring opinions, and Chief Justice John Roberts joined in concurring in the judgment.

The liberal activists on the court, Stephen Breyer, Sonya Sotomayor and Elena Kagan, formed a minority still dedicated to the protection of the abortion industry and would have let Roe, faulty as the ruling now has been revealed, stay.

Alito explained that for 185 years each state addressed the conflict that is a “profound moral issue” where some believe a person comes into being at conception – a position now largely supported by science – as opposed to those who say a woman has a right to control her own body.

Roe, in 1973, came even though “The Constitution makes no mention of abortion.” Worse, the court found, “experts have determined that Roe is ‘not constitutional law’ and gives ‘almost no sense of an obligation to try to be.'”

It was Justice Byron White, on the court in 1973 and dissenting from the creation of an abortion “right,” who had pointed out it was nothing more than an “exercise of raw judicial power.”

It was Mississippi, arguing for its own law, that charged the high court with the responsibility that “we should reconsider and overrule Roe and Casey and once again allow each state to regulate abortion as its citizens wish.”

The opinion said, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ … The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.'”

The opinion noted evidence from the state that an unborn baby’s heart is beating at five or six weeks, and by nine weeks “all basic physiological functions are present.”

Roe, the opinion blasted, was based on a “right” to abortion that is not mentioned in the Constitution, which in turn stems from a “right” to privacy that is not mentioned in the Constitution.

The 200-plus page ruling said, “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance. The Casey court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause.”

But Roe simply was a court out of control, the opinion noted.

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe,” the opinion explained.

“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single state. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the states had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow.”

In 1973 then, “Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.”

Thomas joined in the opinion, but said he would have gone further, toward a full review of the 14th Amendment decisions.

“We should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell, Because any substantive due process decision is ‘demonstrable erroneous,’ …. We have a duty to ‘correct the error’ established by these precedents.”

Those include the creation of the “right” to homosexual behavior as well as the “right” to same-sex “marriage.”

Kavanaugh said simply that, besides not being in the Constitution, “a right to abortion is not deeply rooted in American history and tradition…”

Roberts, long considered to be uncertain in his support for life, said he agreed with the judgment, but would have done less.

“Out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”

The dissenters based their arguments are the false position that “A state can force [a woman] to bring a pregnancy to term, even at the steepest personal and familial costs.”

In fact, abortion still will be available, based on the determinations of individual states.

And they charged that states now can imprison a woman “for daring to seek or obtain an abortion.”

They said the “rights” to purchase contraceptives, engage in same-sex relationships and same-sex “marriage” also now are suspect, since they were based on arguments similar to Roe.