Responding to attorney Stephanie Randall’s take on the possibility that the United States Supreme Court will overturn Roe v Wade, shared in the Daily Post on May 18.
I agree with her, that since all we have is a draft opinion it is nothing more than fodder for controversy without any legal effect. I also agree with her proposition that in originally deciding Roe, the Supreme Court declared an “un-enumerated right” that is not actually written in the United States Constitution.
But I disagree with much of what else she writes.
At the outset, let me state my position on abortion. I support abortion on demand for the first trimester, and after that if the mother’s life is in danger. Don’t know on which side of the debate that labels me.
That having been said, I — and most legal scholars on both sides of the debate — have long recognized Roe was decided on very dubious legal grounds:
Justice Alito explains why, from a constitutional law perspective, the legal rationale underlying the Roe decision is simply wrong.
Before addressing Randall’s substantive argument, and alarmist conclusions, there is this. Randal wrote, “How does Alito legally support overturning the near 50-year-old precedence of Roe?” As a lawyer, she knows the answer, so that must be a rhetorical question.
Precedent, the doctrine of stare decisis, is not absolute. I’ve previously written about it in this forum. That Roe is 50 years old doesn’t make it sacrosanct. The Supreme Court has overturned decisions with much longer tenure.
Here is a list of all the cases in which the Supreme Court has overturned its own prior decisions.
As you can see, some of them were over-100-year-old precedents when they were overturned.
Probably the most well-known was of the 1896 case, Plessy v Ferguson, which held the “separate but equal” doctrine of racial segregation to be constitutional. Fifty-eight years later, in Brown v Board of Education the Court declared that “separate but equal” was unconstitutional, overturning Plessy.
If long-term tenure of a precedent made a bad decision unassailable, then the ‘Jim Crow’ law Plessy approved would still be constitutional. I’m guessing no Roe supporters think separate but equal racial discrimination should still be legal… yet they are saying the court can overturn Plessy after 58 years, but Roe is inviolable after only 50 years.
Randall is correct that Alito relies on the original intent of the language of the Constitution. But she fails to say why Alito is wrong for saying abortion was not a historic right – enumerated or un-enumerated.
The 11th Amendment declares, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The problem with Roe is that abortion was not an un-enumerated right “retained by the people” at the time either the Constitution or the 11th Amendment were adopted.
But where Randall resorts to pure hyperbole is her predictions about the effect of overturning Roe. She claims, “It is likely that most conservative states will enforce or create restrictions on abortion.” That will only happen in states where a majority of voters oppose abortion. If abortion has the widespread popular support its advocates claim, then there is nothing for them to worry about.
For instance, the state of Florida is viewed by many as a bastion of conservatism because our legislature had the audacity to give parents the right to have some say in what their children are taught in schools. So where does Florida law stand on abortion?
Here in Florida the right to an abortion is protected under the “Right to Privacy Amendment” to our constitution. It declares:
“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Article 1, Section 23. (“otherwise provided herein” deals with the public right to access government records and meetings.)
We don’t need an “un-enumerated right” to privacy. We have an expressly enumerated one. That’s the thing about true conservatives. We don’t like big government interfering in our lives.
The Florida Supreme Court, who are the final authority on our state constitution, has already declared the privacy amendment protects the right to have an abortion. So down here, there is a constitutional right to abortion independent of what happens to Roe. Randall didn’t mention that when predicting what will happen in “conservative” states.
This year the Florida legislature enacted a statute allowing abortion on demand for the first 15 weeks – clinically longer than the first trimester – which is the same as the Mississippi law at issue before the Supreme Court. Contrary to what has been portrayed in some media, the Supreme Court overturning Roe in this case will not outlaw all abortions in Mississippi.
Instead, Randall refers to states which already have statutes completely outlawing abortion when Roe is overturned. If a majority of citizens of those states don’t like total prohibition, they can elect state legislators who will repeal those prohibitive laws. That’s how representative democracy works, right?
Or, how about this. The United States constitution expressly recognizes a “right to travel” from one state to another, specifically for medical services, see Saenze v Roe (at pages 501-2). So if abortion is restricted in your state, travel to one where it isn’t.
Randall is also wrong that overturning Roe will inevitably result in reversing other cases that found un-enumerated rights to interracial, and gay marriage. Those rights are based on a legally distinct constitutional principle than is the Roe rationale for abortion. Interracial marriage, and gay marriage, clearly fall within the concept of equal rights. Those relationships are analogous to traditional marriage, and equal protection clearly proscribes treating individuals in those marriages differently than individuals in heterosexual, and same race marriages.
Conversely, abortion has no such analogy – thus no equal protection basis. To whom, by comparison, is a woman wanting to have an abortion being treated unequally? That is the core legal flaw in the reasoning behind Roe.
So to make the leap from overturning Roe to overturning Obergfell (gay marriage) and Loving (interracial marriage) is a legal non-sequiter. In fact, Alito says, in the draft, that the reasoning for overturning Roe does not equate to other un-enumerated rights. So on what does Randall base her claim?
As I said, I’m okay with women having unrestricted freedom to kill their own in-utero fetuses during the first trimester. (Oh, was that a little too real? Well, I don’t delude myself as to what abortion really entails.)
Even though my lawyer brain knows that based on constitutional principles Roe should be overturned because it’s bad law, there was still a part of me that emotionally hoped it would not be.
Abortion rights advocates have nullified my emotions by their actions.
First, there is the unprecedented ethical breach by whomever leaked Alito’s draft. That some Roe supporters perceive the leaker as a hero says all you need to know about their complete lack of integrity. Then, there is their protesting at the homes of Supreme Court justices. That is temper-tantrum infantilism utterly without any justification whatsoever. Roe supporters have given me two reasons to discount my own emotional inclination. Now I can be intellectually honest, and unconflicted, hoping Roe is overruled.
Then, as the drafters of the United States Constitution intended, the voters in each state will decide the issue — instead of it being decided by a group of unelected judges with life tenure.
Why are Roe supporters so afraid of letting a majority of voters decide?
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.