Roe v. Wade: Further Proof (Part V)

The Court held the state of Texas’ abortion statute to its highest level of scrutiny to justify the need for the law in Roe (strict scrutiny). In the Court’s view Texas could not prove a “compelling state interest” (before viability) and therefore the law was invalidated. However, the Court set a simple “rational basis” standard to review the constitutionality of state laws less than two decades earlier. The Court made the following conclusion in Williamson v. Lee Optical (1954): “in a unanimous decision, the Court held that while the law may have been “needless” and “wasteful”, it was the duty of the legislature, not the courts, “to balance the advantages and disadvantages of the new requirement.” The Court emphasized that “the day is gone when this Court uses the Due process clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” This decision was written by Justice Douglas who would latter waffle over this precedent when he handed down the Griswold decision. In Griswold Douglas conjured up the “penumbras” theory to sidestep Williamson to strike down a state law using the Fourteenth Amendment while creating a new Fundamental Right to privacy at the same time. The penumbras theory stated that the right of privacy could be found throughout the Bill of Rights: no illegal searches and seizures and no quartering of troops for example. From this Douglas asserted the framers intended to protect all rights to privacy. That is a big jump when the framers could have simply guaranteed that right. The fact the framers protected some privacy rights but omitted others is very telling and was most likely purposeful. And of course, Douglas’s decision in Williamson did nothing to hold him to the standard he developed when deciding Roe v. Wade (that a state can regulate the abortion industry as it sees fit). I do not agree Williamson was properly decided, but it was precedent set forth by Justice Douglas and ignored by Justice Douglas in Griswold and Roe. Williamson has never been overruled and remains good law today despite the fact that Lens Crafters is doing what Lee Optical was denied. Some scholars would argue that the rational basis standard developed in Williamson did not apply to Roe v. Wade because abortion dealt with both a Fundamental Right (abortion) and the discrimination of a particular sex. Neither Fundamental Rights or discrimination components can exist to use a rational basis standard. However, Williamson denied a person the Fundamental Right to work a lawful profession. And prostitution laws target the female sex, but no is disputing they are not discriminatory even though women are penalized more than men. If Williamson fit a rational basis standard then so too did Roe, Griswold, or any State law for that reason. This is why Williamson was such a bad decision (not just because it was decided wrongly, but it essentially made the rational basis standard for all state laws – including over Fundamental Rights). But if stare decisis was truly practiced then the Court would have applied the same Williamson standard to Roe, Griswold, and Baird.

The Court used a rational basis standard when deciding cases about government funding for abortion and therefore found that state and federal restrictions on funding were Constitutional in cases such as Maher v. Roe (1977), Beal v. Doe (1977), Poelker v. Doe (1977) and McCrae v. Harris (1980). In essence, the Court held that Medicaid and other government sponsored healthcare was an entitlement and not a Fundamental Right recognized by the Fourteenth Amendment. Furthermore, no abortion rights were abridged since the laws did not place any obstacles in the way of having an abortion that were not already there. Of course, this caught the ire of the liberal Justices who thought the majority rejected “human terms” and proclaimed the majority opinion “condemned a woman to remain pregnant” and the majority is “imposing a moral viewpoint”. The dissent felt these decisions by the Court placed an “undue burden” on poor women seeking an abortion and it therefore violated their equal protection rights. After all, pro-abortion advocates argued that abortions cost the state less than an unwanted baby. The Court dissenters also argued the majority should use the same “compelling state interest” or even some intermediate scrutiny test created by the Court in Craig v. Boren (1976) to decide abortion funding. In Craig the Court held that when a law discriminates against one sex there must be an important government objective to do so. This was the mess created when the Court overstepped its bounds in Roe and created a Fundamental Right that simply does not exist.

The claims by the dissent in the previous paragraph can be refuted easily. In fact, one can make all the same argument to defend prostitution. Prostitution laws impose a moral viewpoint. Prostitution laws impose an “undue burden” on woman trying to make a living. Do prostitution laws consider the “human terms” of women trying to survive in America? Prostitution laws target mostly women and therefore violates the equal protection clause. Sure, states can make a convincing argument to support prostitution laws to protect a compelling state interest, but keep in mind prostitution is legal in most of Nevada. Could the Court choose to elevate the profession of prostitution as a Fundamental Right in that woman have the right to choose any profession as much as they have a right to choose abortion? Sure, why not! In fact, abortion laws work to protect the prostitution profession. As for the argument that abortion saves States money does not consider the extensive counseling and damaged mental state of more than half of all mothers who abort a child. This impact on mothers and families should not be underestimated. Nor should the statistic of higher divorce rates and single moms raising families needing federal assistance. Since abortion has been legalized the per capita cost of welfare has continue to go up despite the fact that abortions primarily affect poor African-American. African-Americans make up 41% of all abortions but only account for 13% of the population. From this information, it is obvious that abortions are readily available and affordable for the poor. Why aren’t people arguing that abortion violates the equal protection clause because it targets African-American disproportionately? This information supports the claim that abortion and feminism are both radical in that they target the genocide of the poor and African-Americans just as Margret Sanger (Founder Planned Parenthood) envisioned a century ago.

Abortion advocates incorrectly claim that Roe overturned Buck v. Bell (sterilization of undesirables). Since Roe gave women the right to choose, they asserted women have both the right to terminate or to have a child thus also protecting the right to have a baby which was denied in Buck v. Bell. The truth is that Buck v. Bell has never been officially overturned and the Fundamental Right of procreation was decided in Skinner v. Oklahoma (1942). Let’s face facts, Roe v. Wade was about abortion rights and nothing else. A woman would not be “condemned to remain pregnant” if Roe was about the right to procreate.

Many Court Cases such as Planned Parenthood v. Ashcroft and Thornburgh v. American College of Obstetrician and Gynecologists (1986) dealt with state regulations on abortions. Pro-abortion advocates saw these laws as a means to obstruct people from obtaining an abortion. I do not doubt that obstruction or discouragement may have been part of the anti-abortion movement motivation. That being said, most state laws merely “regulated abortion the same as any other potentially dangerous medical procedure.” The Courts voided many of the provisions of these regulatory laws, but remember Roe v. Wade was decide in part because of the “horrors” of illegal abortions. If this is true, they why would pro-abortion advocates object to tighter safeguards to “protect woman’s health and their bodies?” This is not only hypocritical, but it is further evidence that abortion advocates do not care about safety. Instead, they merely care that abortion is legal and easy to access.