So What's the Deal With Roe v. Wade, Anyway?
Updated: Oct 15, 2020
I wrote and published this post originally in September of 2019, but in light of Amy Coney Barrett's confirmation hearings, I thought it was worth revisiting.
Do I believe that, if she makes it on to the Supreme Court, Barrett will try and overturn Roe? Yes. Yes, I do. And yeah, I know that Barrett gave a squishy non answer when she was asked directly about Roe. She said that Roe was not one of those cases that was so solid that it should never be challenged, but she also said that didn't mean she thought that Roe should be overturned.
I call B.S. Kavanaugh also gave a squishy non answer when he was asked about Roe during his hearings, saying that he would "respect precedent". But as soon as an abortion related case made its way to the Court after he got in, he wrote a very anti-choice opinion. So I think Barrett will do the same thing. And frankly, I don't think Trump and his cronies would have picked her if they thought otherwise.
So here is my original post, explaining the holding in Roe. Please, if you care about women's rights and free access to abortion, call your Senator and tell them not to confirm Barrett. The switchboard number for Congress is (202) 224-3121.
With so many states passing laws that criminalize abortions, you may be wondering a few things. Like, how can they pass these laws if Roe v. Wade legalized abortion? Wasn't Roe decided forty years ago? And why were these laws passed if they can't be enforced? What the hell is going on?
The big reason that these laws were passed is because some people want to overturn Roe v. Wade, and now that Brett Kavanaugh is now on the Supreme Court, they think they might have enough votes to do it. In addition to being an attempted rapist (Got a problem with that? Prove me wrong, state of Maryland!), and a guy with a weird penchant for saving his high school calendars, Kavanaugh is one of those people who likes to interpret the Constitution using only the words in it, or what he thinks the Framers probably meant. Now that Kavanaugh is on the Court, there are five justices who like to interpret the Constitution in the same way, so there might be enough of them to overturn Roe v. Wade.
But why could Roe be overturned? Because some people don't like the reasoning behind it.
It all goes back to a case called Griswold v. Connecticut, a case decided in 1965. In this case, a married couple who lived in Connecticut wanted to use birth control. And for good reason. The wife had gotten pregnant several times, and each pregnancy had ended either in a miscarriage or a still birth. They just didn't want her to get pregnant again, so they saw a doctor to get some birth control. In Connecticut at the time, however, it was illegal for doctors to prescribe birth control to their patients. The doctor got busted, and the married couple sued, hoping to overturn the law.
The Court said that married couples have the right to use birth control if they want to. But the Court used a controversial reason. The Court said that the married couple had a constitutionally protected right of privacy that allowed them to ask for birth control and for the doctor to prescribe it. This case is the first case where the Court said that anyone was protected by the right to privacy. The Constitution does not list a right to privacy in so many words. But the Court argued that there were several places in the Constitution where portions of the right to privacy could be found. They were the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Ninth Amendment. They also discussed the Fourteenth Amendment Due Process Clause to bolster their argument.
The First Amendment includes the right of free assembly. That means that you can get together with other people in a group. If you do that, you can be private about it. This case didn't mention it by name, but in 1958, the Supreme Court decided NAACP v. Alabama. In that case, the Court held that the NAACP did not have to turn over a list of its members to the state of Alabama. With the Ku Klux Klan's widespread use of lynching and burning crosses, 1958 was a dangerous time to be a member of the NAACP in Alabama. So the Court held that the NAACP did not have to give a list of its members' names and addresses to the state of Alabama. So people were free to associate with the NAACP and be private about it.
The Third Amendment is that weird one that says the government can't force you to let soldiers move in to your house when we're not at war. The Fourth Amendment says that if the police want to search your house, they can't just show up unannounced and tear your house apart. They need a warrant first, and that warrant has to say what they're looking for, and where they think they'll find it. The Fifth Amendment says that you don't have to admit that you committed a crime if you are on trial.
The Court in Griswold said that all of those amendments have a penumbra, which is a fancy word for shadow. So they protect rights that are spelled out, but they also protect rights that are related. For example, the Fourth Amendment protects against unreasonable searches and seizures, but it also protects the general expectation that people have a right to privacy in their homes.
The Ninth Amendment was listed as another part of the Constitution that protects the right of privacy. The Ninth Amendment doesn't protect anything specifically, but says that if the people have rights that aren't mentioned by name in the Constitution, then they still have those rights even though they have not been mentioned by name in the Constitution. It was included in the Constitution because, around the time the Constitution was written, some people were afraid that since the Bill of Rights mentioned some rights by name, courts would say that people didn't have a right that was not mentioned by name in the Constitution. So it was a way of saying hey, if we left something out, and you think it's really important, then you still have that right even if we left it out.
The Court said that the Ninth Amendment included the right of married couples to use birth control because they said that marriage is a sacred institution, and much older than the U.S. Constitution. And since we understand that married couples are allowed to have sex, they should also be allowed to make decisions about how many kids they want to have.
The Court also mentioned the Fourteenth Amendment. They said that the Fourteenth Amendment didn't allow states to infringe on fundamental rights, and the right for married people to use birth control was a fundamental right. They also said that the Fourteenth Amendment protects personal liberty, which means that people have the right to do stuff. And included in that personal liberty was the right of married people to use birth control.
Okay, so what does all of that have to do with Roe v. Wade? The main holding in Roe v. Wade is that the right to privacy includes a pregnant woman's right to get an abortion. And that is the part that Pro Lifers want to overturn.
There is also a section in Roe v. Wade that talks about the Fourteenth Amendment, but it does so differently. The rights that are described in the Fourteenth Amendment are granted to "all persons born or naturalized in the United States". It does not say that rights are granted to the unborn. So as far as the Constitution is concerned, you only become a person once you are born.
'Okay,' you might be thinking, 'that's pretty weird. And super complicated. But what happens now?'
Well, there are two things we should keep in mind. First, even if the Supreme Court does hear a challenge to Roe v. Wade, it will probably take years to happen. The process of getting a case in front of the Supreme Court usually involves a case going to a local district court, and the loser taking it to a court of appeals. Then, the Court usually doesn't agree to hear a case unless courts of appeals from different parts of the country disagree about something constitutional. And that could take years to happen.
Second, if the Supreme Court makes a controversial decision, it needs help from Congress, or the president, or both to carry out the effects of that decision. The Court has no army, like the president, and no money, like Congress. All the Court really has is our respect for them. So if they make a controversial decision, it needs help from the other two branches to enforce its ruling.
Remember Brown v. Board of Education? The Supreme Court needed the National Guard to escort the first African American students into the school they were integrating. And those National Guard troops were sent there by the president, and paid by Congress. So if the Court decides to overturn Roe v. Wade and make abortion illegal again, they would have to have help from Congress and the president in order to enforce the law. And given how unpopular that decision would be, it would be pretty hard for the Court to enforce it.
Even so, I'm concerned. I really would prefer that Roe stay the law of the land. Also, since I know that Republicans have been plotting to overturn Roe since it was first decided in 1973, I know that the Republicans in Congress would be happy to try and figure out a way to support an end to safe and legal abortions.
I say these things to tell you that it's really, really important for us to vote these people out. (Lindsey Graham and Mitch McConnell in particular.) I know democracy is hard, but it really only works for us if we all do our part.
In addition to voting, the best thing we could do to protect the legal right to abortion in the U.S. is to pass a federal law that says that abortion is legal. Elizabeth Warren made this suggestion recently, and I think she is right. With our system of checks and balances, Congress could absolutely provide a check and balance on the Supreme Court and just pass a law already. Frankly, I think it would be much better to have a clear law that says that abortion is legal in so many words than to rely on the right to privacy that is strongly implied in the Constitution. So if you are concerned about keeping abortion legal, please contact your U.S. Senator and Representative and tell them to pass a federal law to keep it legal.
Not sure who your house representative or your senator is? Here are ways to find out:
And if there's any other updates with Roe v. Wade, I will let you know.