Roe v. Wade

From dKosopedia

Category: Supreme Court decisions

Roe v. Wade (1973)

Protected a woman's right to have an abortion through a trimester system. This ruling states that abortion is legal prior to the third trimester of pregnancy, after which time a state may regulate the procedure. After viability, the state's interest in fetal protection increases, and a state may more heavily regulate abortion. The claimed justification of this ruling was the so called "right to privacy" that many claim was established in the Griswold_v._Connecticut case.

The Roe v. Wade decision overturned many state laws regarding abortion by claiming that abortion is a constitutional right and therefore state legislatures did not have the right to follow the will of the citizens with regard to laws on abortion. This is controversial because abortion is obviously not mentioned in the Constitution. And the justices on the Supreme Court are mandated to base their decisions on the Constitution, not their personal opinions and wants.

Most experts on constitutional law regard the decision on the Roe v. Wade case as a tremendous legal mistake. The Supreme Court interjected itself into what should have been a legislative matter. The Constitution doesn't address this issue, and as the Tenth Amendment affirms, on issues where the Constitution is mute, we have state and federal legislatures to write our laws. The Constitution is sort of the Bible for the United States of America, and the justices of the Supreme Court are essentially the theologians who decide what it means. They aren't supposed to write a new one. They're supposed to figure out what it means. When a change in the Constitution is needed, we have a mechanism to change it.

Most legal scholars believe it would be better for everybody if the matter of abortion was returned to the state legislatures. In that way the people's elected representatives can write the laws in accordance with the will of their electorates. We'd only have a hodgepodge of laws across the country, and in some areas abortion would be illegal if the electorate wants it that way. That's how democracy works.

What we call law is nothing more or less than the public's collective belief, their conviction of what right and wrong is. Whether it's about murder, kidnapping, or running a red light, society decides what the rules are. In a democratic republic, we do that through the legislature by electing people who share our views. That's how laws happen. We also set up a Constitution, the supreme law of the land, which is very carefully considered because it decides what the other laws may and may not do, and therefore it protects us against our transitory passions. The job of the judiciary is to interpret the laws, or in this case the constitutional principles embodied in those laws, as they apply to reality. In Roe v. Wade, the Supreme Court went too far. It legislated; it changed the law in a way not anticipated by the drafters, and that was an error. All a reversal of Roe will do is return the abortion issue to Congress or the duly elected state legislatures.