Supreme Court v Roe: Abortion Is a Modern Right [EDITORIAL]

When the Supreme Court overturned the 1973 Roe decision last week, they did not criminalize abortion but, based on national reactions on both sides, it sounds very much like they did. Justice Alito’s stated reasoning for the ruling rests on his belief that the original Roe decision was made in error and that, based on Constitutional principle, abortion should have remained as it was—the province of each individual state to decide—so he returned it to them. Based on the principles of sound jurisprudence, the Justice may indeed be right, but it is our contention that it doesn’t matter now. Toothpaste does not fit back into its tube. It may be that abortion should not have become a right, but it did, and the Court should not have tried to unmake it.

                Justice Alito rests his Constitutional argument on two pillars, the first as “the inescapable conclusion that a right to abortion is not deeply rooted in the nation’s history and traditions,” and he’s right about that. No such freedom existed before 1973, but two generations of Americans have been born and reached maturity since then, generations who have never known a world without Roe, and whose decisions about the nature of life and morality included an abortion option. The court created them. They can’t ignore them now.

                Justice Alito’s second Constitutional argument states that “some of our most important Constitutional decisions have overruled prior precedents.” That’s true, too, and he cites cases like Brown v. Board of Education and Plessy v. Ferguson, which struck down the “separate but equal” laws, and West Coast Hotel Co. v. Parrish and Lochner v. New York, which dealt with wages for women and maximum working hours. What the Justice did not elaborate was that in none of the cited cases did the overturned decisions retract previously granted freedoms. Rather, they removed barriers to rights for marginalized citizens. This situation is nothing like those.

                As a Board, we intentionally set aside the issue of abortion timing, of determining the onset of life, and of viability, at least for now, as a moving target and far too non-specific to address alongside more fact-based determinations, like what might happen next regarding other freedoms. For fifty years, Roe has not existed in a vacuum. Other decisions have already been handed down that share Roe’s heartbeat, like Skinner v. Oklahoma, which outlawed the sterilization of criminals and Loving v. Virginia, outlawing interracial marriage. These, too, were based on the same right to privacy interpretations that Justice Alito reversed.

                Justice Thomas, in his concurring opinion and comments afterward, went further. He called the court to reconsider other decisions, specifically mentioning Griswold v. Connecticut, which institutionalized a right to contraception; Lawrence v. Texas, which invalidated sodomy laws; and Overgefell v. Hodges, which established gay marriage. If Justice Thomas has his way, all of these rights are in jeopardy, too, and put the court in danger of a clear violation not only of their mandate to responsible jurisprudence, but of serving both the public and the law. 

                Aside from Constitutional considerations, plenty of other issues muddy these waters on both sides. Roe opened the door for practices that nearly everyone opposes, like partial birth abortion and the use of abortion as birth control. On the other side, right-to-life advocates pay more attention to the fetus than they do to the living child rescued from abortion. Marginalized mothers need more help caring and providing for the children they are asked to bear.

                In the end, though, there is no good way to turn back the clock. There never was. Laws that may not specifically cite but are historically based on what courts or lawmakers presuppose to be universal American moralities no longer hold sway in this nation. We made a decision a long time ago as adjudicators, legislators, and citizens to mold our Constitution into a living document, relevant to the times we live. In that effort, we have strived to make this a nation of the people, by the people, and for the people. Therefore, when we make laws, and when we strike them down, it behooves us, especially when we so vehemently disagree, to look around at the people we’ve become and act accordingly.