Last week marked the 38th anniversary of Roe v. Wade. Along with thousands of other demonstrators, we braved the cold to protest the ruling in this year’s March for Life, an annual rally that winds past the Capitol and ends in front of the Supreme Court.
It is ironic to demonstrate outside our nation’s highest court, where law, rather than public opinion, should govern. Yet, in a sense, it is entirely appropriate. Since the right to abortion lacks a constitutional basis, respect for the rule of law requires that the issue be decided by democratic means — not judicial edict.
Last week’s demonstration in Washington, D.C., serves as a glaring reminder that the heated debate over abortion has not ended and that the Court’s decision in Roe v. Wade usurped a public right to address the issue’s legality through representative means.
While the justices in the majority reached a policy result that many Americans, including themselves, found desirable, they did so by ignoring the proper function of the Court.Indeed, Roe v. Wade rests on such faulty reasoning that even many legal scholars in favor of abortion rights criticize the ruling. The role of the Supreme Court is to interpret the Constitution faithfully, not to create arbitrary new rights at the expense of old ones nor to adopt legislation by judicial fiat.
The Roe v. Wade ruling asserts that abortion is protected by a general right to privacy stemming from the 14th Amendment. As the majority admitted, however, the “Constitution does not explicitly mention any right of privacy.” In other words, while the Constitution protects a plethora of rights (freedom to assemble peacefully, freedom of speech, freedom from unreasonable searches and freedom from self-incrimination, to name a few), it fails to mention a general right to privacy.
This is hardly surprising. Such a vague right would make little sense, given the intention of the Bill of Rights and subsequent amendments to guarantee specific rights with specific clauses.
Lacking a textual or historical basis, this right to privacy depends largely on the Court that created it. Since the Constitution fails to specify the existence or extent of a general right to privacy. Any secondary right that falls under its protection, such as abortion, must necessarily rely on the whim of the current Supreme Court majority.
Decisions made on such a basis do not defend rights or uphold laws — they arbitrarily legislate new ones. This impinges on the powers of legislation that the Constitution grants to elected legislative bodies.
Whether the availability of abortion is a good or bad outcome is closely related to the legal issue but a separate question. Attitudes change. Laws change. Even constitutions change. If the national consensus is that abortion is a fundamental right that ought to be protected, then this view has numerous ways to manifest itself, whether through state legislatures, the federal government or even a constitutional amendment.
Roe v. Wade has many defenders, especially among those who support its outcome — fewer restrictions on abortion access. They argue that women should have the right to do with their own bodies as they see fit. This is a serious consideration, but also serious is the possibility that abortion extinguishes a human life.
Roe v. Wade prevents the proper legislative resolution of a very difficult issue — one that requires assigning relative weights to the rights of the woman and the rights of the unborn child or fetus. In resolving these competing claims, both sides on the abortion issue must show a proper respect for the constitutional process.
Those who participate in the March for Life do so for moral rather than legal reasons. Yet the March is symptomatic of a larger national debate over the wisdom of abortion that, under Roe v. Wade, cannot take place in the proper arena. Poorly reasoned and politically motivated, Roe v. Wade is a subversion of democracy and deserves to be overturned. We rest our case.