Bench Memos

Politics & Policy

Dishonest Scaremongering on Ditching Roe

Abortion supporters and pro-life advocates demonstrate on the anniversary of the Supreme Court’s 1973 Roe v. Wade decision, Washington, D.C., January 24, 2011. (Jim Young/Reuters)

Perhaps recognizing that Roe v. Wade is indefensible as a matter of constitutional law now that a pivotal case from Mississippi has reached the Supreme Court, the Left has resorted to scare-mongering, arguing that to overrule Roe would be to turn the clock back on other things, such as contraception or the right to marry. That argument demonstrates such a profound misunderstanding of our constitutional structure that it borders on the disingenuous.

To start with the basics, the Constitution textually elevates certain fundamental rights. The First Amendment, for example, guarantees freedom of conscience and the right to practice one’s faith. The Fourth Amendment guarantees a right to privacy — and prohibits the government from barging into one’s home without probable cause and a judicially obtained warrant. Meanwhile, the Fifth Amendment guarantees the right against self-incrimination, the Sixth Amendment the right to a lawyer, and the Seventh Amendment the right to a jury of one’s peers.

And then there’s the 14th Amendment. That Civil War–era amendment contains both substantive and procedural protections. Substantively, it guarantees to all persons “equal protection” under the law. It also prohibits states — vis-à-vis the due-process clause — from depriving “any person of life, liberty, or property, without due process of law.” When the 14th Amendment was originally enacted, its due-process clause was interpreted as one might expect: to require states to provide certain processes — such as notice, an impartial tribunal, and an opportunity to be heard — before infringing on life, liberty, or property.

Yet, in 1857, the Supreme Court infamously expanded the Fifth Amendment’s due-process clause to include substantive rights in Dred Scott v. Sanford. In that rightly maligned case, Chief Justice Roger B. Taney employed the clause substantively to strike down the Missouri Compromise and hold that slaves were property.

Roe is today’s Dred Scott. In Roe, Justice Harry Blackmun similarly employed the due-process clause of the 14th Amendment to conclude that the due-process clause somehow includes the substantive right to an abortion. That case inferred the right to an abortion from a collection of other rights.

Despite the Left’s now-vitriolic defense of Roe, it is hard to find a constitutional scholar who will say the opinion was correctly reasoned. As John Hart Ely put it, “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” According to Ely, “never before” had the Court’s failure to link a created right to the Constitution been “so obviously lacking.”

The chief problem with Roe’s view of the 14th Amendment is that it leaves the future of our Constitution — and our country — firmly in the hands of a majority of the Supreme Court. That is why, when the Supreme Court implies a substantive right from the due-process clause, its cases require that the protected right be “carefully described” and “deeply rooted” in our nation’s history and traditions.

The treacherous foray into implied rights is why contemporaneous state laws matter. If there is a deeply rooted history and tradition of protecting a particular right, the constitutional right is tied to the collective wisdom of generations rather than the whim of unelected judges. Yet because the majority of states restricted abortion in 1868 — as abortion advocates are forced to recognize — there is no such collective wisdom supporting the Court’s wholesale creation of a right to an abortion.

On the other hand, laws that fail to afford equal protection to individuals are unconstitutional as a textual matter and thus contemporaneous laws are irrelevant. That is why discriminatory state laws are unconstitutional even if they may have historical origins.

The Left’s attempt to lump contraception and marriage in with abortion suffers from two fatal flaws. First, cases like Loving v. Virginia, which guarantee the right to marry interracially, and Eisenstadt and Griswold, which guarantee the right to contraception, find grounding in textual rather than implied rights. Loving is based on the equal-protection clause and Eisenstadt and Griswold on the privacy protected by the Fifth Amendment.

Further, while the Supreme Court has recognized that the liberty protected by the due-process clause may sometimes include unenumerated privacy rights, those rights must have historical grounding. In short, the right to marry and the right to privacy in intimate relationships are supported by constitutional text and history; the right to abortion is not.

And, of course, there is another difference between Roe and cases like Loving, Lawrence (holding that a state may not criminalize intimate relationships), and Obergefell (holding that the Constitution protects a right to same-sex marriage). None of the latter decisions authorize the intentional killing of another human being. Abortion is fundamentally different from any other liberty interest that the Supreme Court has ever recognized. No other such interest involves harm to an innocent third party. None involves, as the Supreme Court put it, “the purposeful termination of a potential life.”

Abortion advocates’ reliance on the right to marry and to contraception is a red herring. As the Supreme Court has recognized, the right to an abortion is “unique.” It is unsupported by any of the Supreme Court’s cases and should be overruled.

Denise Harle is senior counsel with Alliance Defending Freedom. Harle served as Florida’s deputy solicitor general from 2015 to 2017.

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