Why Roe v. Wade is Considered Unconstitutional
In the realm of constitutional law, the decision of Roe v. Wade is a topic of intense debate. While the case is celebrated by those who advocate for reproductive rights, it is also seen as a controversial and poorly constructed argument by its critics. This article delves into the reasons why many legal experts and scholars consider Roe v. Wade to be unconstitutional.
The Constitutional Basis for Privacy and Security
The United States Constitution guarantees that citizens are to be secure in their persons and property. This fundamental right is crucial to personal autonomy and personal sovereignty. However, requiring a woman to carry an unwanted pregnancy to term, or banning contraception and abortion, directly infringes upon this right. Consider a hypothetical law mandating vasectomies for all males until marriage. This would equally be considered a violation of personal security and autonomy. Similarly, denying a woman the right to an abortion, which is a profound and intimate decision, is tantamount to denying her due process.
The Basis of Personhood and Due Process
Due process is a fundamental component of constitutional law, ensuring that individuals are treated fairly and legally. In the context of Roe v. Wade, the crux of the argument turns on the concept of personhood. Legally, a person must have certain attributes, including autonomy. A fetus, while human, is not autonomous because it lives inside a person and cannot independently think, speak, or rationalize. At this stage, a fetus is no different from a tumor in terms of legal personhood.
The 14th Amendment to the Constitution guarantees that no state can decide for a person what they can or cannot do with their body. This clause ensures that individuals have the right to make informed and autonomous decisions about their own bodies, including the right to end a pregnancy.
Historical Context and Early Views
Historically, the idea of abortion has been a part of human society for centuries. Benjamin Franklin published a book in the 1700s detailing herbal medicinal methods for inducing abortion. These methods were considered a common and accepted part of life. The Constitution, which is often invoked in debates surrounding Roe v. Wade, does not explicitly mention abortion because it does not refer to women or individual reproductive rights. This absence of explicit language in the Constitution is significant because it suggests that reproductive rights are more a matter of societal norms and evolving interpretations than constitutional guarantees.
Legal Critiques and Constitutional Interpretation
Several prominent legal scholars and justices have criticized Roe v. Wade for its lack of logical and constitutional grounding. For instance, John Hart Ely, a Harvard and Yale Law Professor, argued that Roe is bad constitutional law because it is not rooted in the Constitution's language, the framers' thinking, and the specific problem it addresses. Similarly, Edward Lazarus, a clerk to Justice Blackmun who wrote Roe v. Wade, noted that the decision provides no rational basis for its holding. This argument is further supported by Antonin Scalia, who described the substantive due process theory as a "lie."
Justice Blackmun's decision in Roe v. Wade did not provide substantial reasoning. In the nearly 30 years since its announcement, no one has been able to convincingly defend the case on its own terms. Instead, Justice Blackmun's opinion is seen as an ideological decision rather than a constitutional one.
Concluding Remarks
Ultimately, the decision in Roe v. Wade stands as a case in which the Supreme Court took the unprecedented step of legislating from the bench. They did not base their decision on clear constitutional language, but rather on a theoretical extension of personal privacy rights. This approach has been criticized by many for its lack of legal foundation and its potential to set a dangerous precedent.