Why Roe v. Wade was a Terrible Decision (Part I)

The 1973 Supreme Court decision for Roe v. Wade was one of the worst decisions in the history of the court. It ranks just behind other awful decisions: Korematsu, Plessy, and Dred Scott. Let’s outline why this was a bad decision.

First, the Court decision is new legislation from the bench. The Court generates and outlines new laws and policies for future abortions. Instead, the Court’s function should be to merely rule on the Constitutionality of the Texas abortion statute in question.

Secondly, the Court, once again, used the Fourteenth Amendment to trump the Tenth Amendment of the Constitution. The Tenth Amendment says any power not enumerated to the federal government is reserved for the states. In fact, this is how many social and moral issues are decided. For instance, Nevada has legalized prostitution while other states do not. Washington, Alaska, and Colorado have legalized marijuana while other states do not. The infrequently used Tenth Amendment allows the will of the people to generate the law of the states. The Roe decision whipped out abortion laws in all 50 states. There is nothing in the Constitution that gives any federal jurisdiction to birth laws so these type of decisions should be decided by the states. Unfortunately, years of bad precedent yielded great power to the Fourteenth Amendment and rendered the Tenth Amendment moot in these type of cases.

Thirdly, Jane Roe was an alias provided to Norma McCorvey. McCorvey, was provided an alias because she originally lied and said she had been raped. Even as the truth became known, the case still proceeded under the alias. All previous privacy cases never protected the names of the people involved in the cases. This was unique and unprecedented. In fact, McCorvey never appeared in court. It was strange how a falsified case without a witness hiding behind an alias could ever make it to the Supreme Court. By the time the Court heard the case McCorvey had the child and put it up for adoption. McCorvey would later become a born again Christian and join the pro-life movement.

Fourthly, there was no scientific evidence submitted or mentioned in the decision as regards to the development of the fetus and if it could count as a “person”. The Court subsequently ruled the fetus has no constitutional rights since the Constitution only refers to “persons” – they did so without any scientific evidence. After all, if the fetus is a person, then its right to life would protect it from abortion. However, the Court had in the past, given rights to “unborn” persons such as the 1884 case: McArthur v. Scott. The Court would also latter rule in the 1992 Planned Parenthood v. Casey case that fathers have no rights when it comes to abortions because they do not have to be notified by their wife or girlfriend when they are having an abortion.

Fifthly, Justice Blackmun, writes in the majority decision citing an English Parliament law: the Abortion Act of 1967 as part of his justification. However, foreign laws do not pertain to the Constitution.

Sixthly, Justice Blackmun writes that abortion is covered by the Fourteenth Amendment or the Ninth Amendment – people’s right to privacy. Although privacy is not actually mentioned in the Constitution, the Court decided in the 1965 case Griswold v. Connecticut that “Privacy” could be inferred from the Ninth Amendment setting some precedent. In his dissent to Roe, Justice Rehnquist argues that medical procedures are not private, they are public transactions protected by state regulatory statutes. However, in Griswold, the Court merely struck down a statute, it did not generate new law by legislating from the bench as it did in Roe.