Inconsistencies with Roe v. Wade

By now, everyone who isn't in a coma in the US has heard about the leak of a draft opinion that allegedly will overturn Roe v. Wade, the landmark legal case that legalized abortion in 1973. Chief Justice John Roberts has ordered "the marshal of the Supreme Court" to investigate the leak of the draft opinion.

Predictably, both political parties have issued statements/made speeches decrying the news. That's as surprising as finding out that Elon Musk is rich. Let's dig a little deeper into Roe v. Wade, though, than Sen. Schumer's threat-filled rant from the Senate floor or Sen. McConnell's speech from the Senate floor.

Harvard law professor Laurence Tribe and the late Supreme Court Justice Ruth Bader Ginsburg supported a woman's right to an abortion while thinking that Roe v. Wade was bad constitutional law. That's how the Roe ruling has been talked about for a generation. That's the oversimplified explanation for Roe. It doesn't do the issue justice so let's dig into this.

The right to an abortion isn't found anywhere in the Constitution. When the Constitution, Bill of Rights and the other amendments were written, they were exceptionally clearly written. That's because there isn't a constitutional right to abortion. This issue, like many others, was meant for legislatures, governors and the people to resolve.

Glenn Greenwald's article highlights what I'm talking about:

One of the primary concerns in designing the new American republic, if not the chief concern, was how to balance the need to establish rule by the majority (democracy) with the equally compelling need to restrain majorities from veering into impassioned, self-interested attacks on the rights of minorities (republican government). As Madison put it: “To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our enquiries are directed.” Indeed, the key difference between a pure democracy and a republic is that the rights of the majority are unrestricted in the former, but are limited in the latter. The point of the Constitution, and ultimately the Supreme Court, was to establish a republic, not a pure democracy, that would place limits on the power of majorities.

Thus, the purpose of the Bill of Rights is fundamentally anti-democratic and anti-majoritarian. It bars majorities from enacting laws that infringe on the fundamental rights of minorities. Thus, in the U.S., it does not matter if 80% or 90% of Americans support a law to restrict free speech, or ban the free exercise of a particular religion, or imprison someone without due process, or subject a particularly despised criminal to cruel and unusual punishment. Such laws can never be validly enacted. The Constitution deprives the majority of the power to engage in such acts regardless of how popular they might be.

Constitutional rights are clearly written. There's no question that the right to keep and bear arms is in the Second Amendment. There's no question that the right to a speedy trial is in the the Sixth Amendment. There's no question that the right to petition government for the redress of grievances is in the First Amendment.

I'll repeat that abortion isn't a constitutional right. There's a difference between the Supreme Court inventing a preferred policy outcome and a constitutional right. Predictably, Sen. Schumer made another threatening speech in his attempt to change this opinion:

FYI to Sen. Schumer: it isn't just "right-wing Republicans" who are talking about the leak of this draft. George Washington University Law Professor Jonathan Turley said this about the leak itself:

Rep. Pramila Jayapal:"These justices are acting like this is somehow something that they have the right to change. They do not have the right to change this which has been settled law for two generations ..." Under that analysis, Plessy v. Ferguson would still be good law...

— Jonathan Turley (@JonathanTurley) May 3, 2022

Democrats love democracy until they need the judiciary to invent an unpopular policy outcome and shove it down the American people's throats. Then they're perfectly content to let the Supreme Court thwart democracy. Roe v. Wade invented a constitutional right when it didn't exist. It's time to swing the pendulum in the opposite direction so we return to a system of positive stability.