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Why Roe v. Wade and Doe v. Bolton are the Most Unconstitutional Decisions of All Time

The 1973 United States Supreme Court (USSC) decisions in Roe v. Wade[1] and Doe v. Bolton[2] are without question the most egregiously unconstitutional decisions of all time.  These decisions turned the USSC into the national abortion control board, and stripped the ability of elected legislators to regulate this new “right” with the notoriously broad definition of “health” in Doe.

While the Constitution does not contain an express “right to privacy,” and certainly does not contain a “right to abortion,” the USSC created this “right” in cases concerning contraception (i.e. Griswold v. Connecticut,[3]) and expanded it to include the “right to abortion” in Roe v. Wade. The Court held that the decision to have an abortion was part of the right to privacy protected by the Due Process Clause of the 14th Amendment.

However, the killing of over one million unborn human beings a year cannot, by definition, involve private acts.  Furthermore, while one could argue that our country has a history of protecting individuals’ privacy, our country clearly does not have a longstanding tradition of protecting abortion rights.  Therefore, it is disingenuous to argue that the authors of the 14th Amendment intended to include within the amendment a fundamental right to abortion.  Instead, the Court unabashedly made the policy decision that unborn children have no rights, under the guise of protecting women’s rights.

The Court’s decisions in these cases have had lasting consequences.  Roe and Doe have proven to be utterly unworkable; legislators constantly struggle to construct legislative language that will pass the current “test” used by the Supreme Court in abortion jurisprudence.  This confusion is the direct result of judicial interference in a matter that should be handled by the legislative process.  Importantly, the purported justifications of Roe, flimsy as they were, have dramatically eroded with further in-depth scientific information about when life begins and prenatal development, as well as public health data showing the substantial and negative physical and psychological impact of abortion on women.[4] What’s more, people who favor[5] and people who oppose abortion rights agree that Roe is fundamentally a policy decision, without Constitutional language to support it.  In fact, the Supreme Court has substantially modified the doctrine announced in Roe in subsequent cases.[6]

With any decision, the Supreme Court faces criticism and dissatisfaction.  However, few decisions are created out of whole cloth and wreck havoc on major social debates that belong in legislatures.  Today, on Constitution Day, Americans should reflect on the Court’s missteps in Roe and Doe and demand that, in the future, the President and the Senate place justices on the Supreme Court who will uphold the law, not invent it.

[1] 410 U.S. 113 (1973).

[2] 410 U.S. 179 (1973).

[3] 381 U.S. 479 (1965).

[4] See generally John M. Thorp, Jr., MD, Katherine E. Hartmann, MD & Elizabeth Shadigian, MD, Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence, 58 Obst. & Gyn. Survey 67 (2003) (finding an increased risk for placenta previa, subsequent preterm delivery, and “mood disorders substantial enough to provoke attempts of self-harm” following an induced abortion).

[5] See, e.g., Laurence H. Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 7 (1973) (stating “[o]ne of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”); Benjamin Wittes, Letting Go of Roe, The Atlantic Monthly, Jan/Feb 2005 (stating Roe “is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 yale l.j. 920, 935-37 (1973) (stating “[w]hat 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 . . . “).

[6] Casey, 505 U.S. at 869-79 (discussing the cases that have modified the holding in Roe).