It’s logically vacuous to assert that pro-choice Americans were neutral until they read Roe v. Wade, at which point they were convinced by the merits of the majority opinion. Richards wants us to believe that abortion is the product of enduring principles enshrined in our constitution, principles that have existed since before Magna Carta even! They have no choice but to solemnly support Roe v. Wade because that’s where the facts and the principles lead them.
Give me a break. Roe v. Wade is legislation by judicial fiat, motivated by an “ends justify the means” view of law. The conclusion was reached before the premises. Then the premises were concocted to render the result.
There is a real problem when mass infanticide exists for the sole fact that Justice Blackmun was convinced that the constitution says something it doesn't. Roe v. Wade is regarded as poor case law. There are a lot of flourishes and nods to history, but it fails to provide a convincing argument. The only argument they have now is stare decisis. Well, Plessy was precedent too. Even Justice Ginsburg, the left’s sainted “Notorious RBG,” says that Roe is too sweeping and that it flies in the face of federalism. She’s right, but she also fails to note the critical flaw of Roe.
Roe is dependent on the right to privacy implied by the fourth amendment as applied to the states via Incorporation of the liberty prong of the due process clause of the fourteenth amendment. I have my personal reservations on Incorporation, but if we are trying to defend the merits of it, Roe is not the case to do it.
The fourteenth amendment is a Reconstruction amendment pushed by the Radical Republicans after the Civil War in order to include Black Americans in public life. It was ratified to correct the wrong of slavery. The fourteenth amendment made good on the promise found in the Declaration of Independence that all men are created equal.
Instead, Richards would have us believe that those who ratified the fourteenth amendment really just wanted women to be able to kill their babies.
Justice Blackmun insists that because the authorities of science, medicine, law, philosophy, and theology are mum on the subject of when life begins, States’ concerns regarding the fourteenth amendment’s protection of life were trumped by liberty, a liberty that strains credulity. Generally, unless the liberty is enumerated in the constitution, I would say that the life concern is more pressing than the deprivation of liberty.
As we’ve made advancements in the areas that Blackmun claimed were undecided in the 70’s, the framework of both Roe and Casey should allow states to make more restrictions on abortion. Some bioethicists have suggested that advancements in medicine, specifically the possible ability to construct artificial womb environments, would effectively end abortion as we know it, as the right to life would finally trump a contrived liberty.
Ever since Roe v. Wade took the abortion debate out of the hands of the legislatures and the public forum, abortion supporters should be prepared to lose the argument. Richards insists that public opinion is enough to justify Roe. That is the fundamental problem with law in America. If law is determined by simple majority rule, whether by public opinion or by a Supreme Court opinion, no law can ever be unjust. Only laws grounded in enduring objective truths will prevail. Roe fails that test.