Why Roe v. Wade was a Terrible Decision (Part II)

There are many issues with the use of privacy to defend abortion. The use of “privacy” is “broad, abstract and ambiguous” stated by Justice Hugo Black (a liberal) in his dissent of Griswold. In the 1967 case Katz v. United States it was decided that the Fourth Amendment protects Americans privacy from government intrusions, but that cannot be translated into a general constitutional right to privacy. In many of the Court cases cited in its decision of Roe “privacy” is not even mentioned. Besides, the Court admits that the Roe case is “inherently different” from other “privacy” cases before the court, including Griswold. Many of these cases cited in the Roe decision were decided on the grounds of one of the Amendments in the Bill of Rights. However, the Roe decision mentions the liberty language in the Fourteenth Amendment’s due process clause for its reasoning to apply right to privacy in the case. In the Griswold decision, just a few years earlier, the Court refused to use the Fourteenth Amendment in its right privacy decision. Despite its focus on process, the Due Process Clause, at various times in our history, has been given substantive content, resulting in the invalidation of state laws thought to be inconsistent with prevailing understandings of “liberty” – judicial activism through personal bias. However, to apply substantive due process, the “liberty” of interest, must be “Deep Rooted in American History”. Abortion fails this test. In fact, before the Fourteenth Amendment is passed, abortion at any stage of a pregnancy was illegal throughout the United States. This was done to protect the unborn and not to protect women from dangerous medical procedures. This is much different than what the Roe decision suggests about American history. On the other hand, the first substantive due process decision was in 1905: Lochner v. New York. It was decided that the Liberty of Contract was deeply entrenched in American history to rule against a minimum wage hike for bakers. This is much easier to defend than the substantive due process ruling in Roe.

Seventhly, many believe the right argument taken by the pro-abortion movement should have been a Civil Rights one. However, it is easy to justify Brown v. School Board using the Fourteenth Amendment since that was the intent of the law, to protect the rights of African-Americans. It is certainly not as easy to conjure up some intended purpose of the Fourteenth Amendment to protect abortion. Besides, Civil Rights means treating different ethnicities and genders equally. Women certainly got the favorable ruling in Roe v. Wade. After all, it can be interpreted that women received more rights from the Roe decision than spouses and unborn persons – is that fair?

Eighthly, statistics of Roe v. Wade since its passage proved the law was flawed. Over 90% of legal abortions were done as a means of birth control and not to abort a child from a crime or to protect the health of the mother. Abortions increased in dramatic fashion over the decades, yet poverty and child abuse increased. The law overruled varying abortion laws in all 50 states (many of which were very liberal). Also, it was later proved that abortions put mothers at more risk than child birth. For many liberals, abortion was acceptable simply as a means of population control.

Even most liberals cannot justify the Roe v. Wade decision. Ruth Bader Ginsberg called the decision “heavy-handed judicial intervention”. A former Blackmun clerk, Edward Lazarus, called the decision “indefensible”. There are hundreds of such comments, yet the decision has never been overruled. This is the dangers of the Court when they legislate from the bench instead of ruling on state statutes in terms of their Constitutionality. This is the dangers of the Court when they rule based on bias and responsibility instead of merely clarifying if state statutes are being applied fairly to the people.