Sunday, December 03, 2017

Legal Issues of Roe v. Wade

First of all, Roe v. Wade did not legalize abortion. 

Contrary to popular perception, the majority opinion in Roe did not affirm a constitutional right to privacy, much less a right to have an abortion.

Roe and all subsequent abortion cases have established a culture where the Supreme Court, rather than the legislature, dictates the content of abortion legislation, often in painstaking detail. Though Roe itself had little regard for the text of the Constitution and effectively ignored a century of prior jurisprudence, Roe’s defenders have solemnly appealed to the principle of stare decisis to preserve Roe as an established precedent. Revolutionaries despise traditional authority until they gain power, at which point authority again becomes sacred. Since the legal arguments of Roe are virtually nonexistent, it can only be defended by the argument from authority, stare decisis, a principle which Roe itself thoroughly repudiated.

"The most controversial of the civil rights cases is undoubtedly Roe v. Wade, 410 U.S. 113 (1973), which has been applied in a way that effectively establishes an unwritten constitutional right to have an abortion, though the opinion of Roe itself made no such assertion directly. Roe represents a twofold failure of judicial social engineering, since it (1) applied a uniform legal solution over all the states on a highly contentious issue that opens deep moral, religious, and philosophical fissures, and (2) was poorly reasoned and not grounded in law, giving it little intellectual legitimacy. We are only going to consider the second aspect of Roe, its failing as a legal argument.Roe’s intellectual inadequacies are well known and criticized among legal scholars, even those who personally favor a right to abortion.[1] These criticisms have not reached a larger audience, however, due to the superficial coverage of legal matters by the mass media. Accordingly, we need to clear some common misconceptions before examining the opinion of Roe itself, which is often cited but seldom read."


As subsequent history has proven, the Court did not settle the abortion issue, but nationalized it, creating militant opposition groups with national reach. The Court, by legislating from the bench one time too many, itself became an object of competing political ideologies. Instead of debating abortion in state legislatures, the battle is waged through judicial appointments, and as Roe cannot stand on the basis of its weak arguments alone, the abortion issue will be held hostage by the courts until the pre-Warren understanding of the role of the judiciary holds sway once again.

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