I took an introduction to constitutional law course in the early 1980s when I was in college. The professor was an open left-wing activist. When we got to the constitutionality of Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion nationwide, the professor said something like this:
“The Roe v. Wade decision was a poor one, with almost no basis in constitutional law, but we must all agree that it is the correct decision because it reflects the will of people in our modern world. Nobody wants to prevent pregnant women from controlling their own bodies.”
The professor said that the right to abortion would be codified and that the legal foundation of the law would become better explained over time.
And for many years it appeared that my professor was correct. The Casey decision in 1992 further supported Roe v. Wade, and it appeared for many years that we would have legalized abortion nationwide for our lifetimes.
What changed?
I will argue that several things have happened over time that led to the downfall of Roe v. Wade and that the COVID-19 pandemic response was a huge one that put the final nail in the coffin of the 1973 decision.
Roe v. Wade invents a new constitutional right, the right to privacy. This “right,” which is not mentioned in the Constitution itself, was developed during the Griswold vs. Connecticut decision in 1965, which said that the government cannot prevent married couples from using contraceptives because of the “right to marital privacy.” The Roe v Wade decision relied on the Griswold precedent and developed the “right to privacy” as a constitutional right justifying abortion.
Looking at this from the perspective of 2022, the idea of the government preventing married people from buying contraceptives seems absurd, but it is simply a fact that many states had long prevented the sale of contraceptives based on the Comstack Act of 1873. By the 1960s, only a few states were still enforcing this act, and in fact they were enforcing it very rarely. It was easy to get contraceptives, even in 1965. It seems with the perspective of hindsight that the Supreme Court was primarily addressing this issue to make a statement. The Supreme Court of the 1960s and 1970s was a classic “activist court” in the sense that it felt it had an obligation to make new law, rather than adjudicate existing laws. Court members felt that out of date laws like the Comstack Act needed to be destroyed, rather than ignored, and they felt that it was the mandate of the court to act.
This mandate to act led to the Roe v. Wade decision just eight years later. It is worth pointing out that by 1973 abortion was being legalized in many states. Public opinion supported the legalizing of abortion in many cases. Very few people wanted a 12-year-old girl who had been raped to have to carry the baby to term. Very few people wanted to prevent an an abortion in the case of a mother who would be killed by the birth of the child. And a growing number of people believed that women should have the right to control what went on in their own bodies.
Bodily autonomy — the idea that we should be able to control our bodies from government intrusion — is not in the Constitution. But I think most of us can agree that it is a good idea and it is implied by the very idea of personal liberty, which IS in the Constitution. Looking at this issue five decades later, I think the pro-choice movement missed a huge opportunity to enshrine the idea of bodily autonomy in the Constitution through a constitutional amendment in the 1970s. Such an amendment probably would have passed because most people believe that a tyrannical government should not interfere with our bodily integrity. Should the government be allowed to implant a tracking device in your body? No way, right?
And this brings us to the pandemic. Did you notice that the same people who believed in bodily autonomy regarding abortion completely rejected the idea of bodily autonomy when it came to the vaccines or masks or lockdowns? Oops. Big mistake. BIG.
The constitutional scholars on the court did not miss this contradiction. You will notice that in the decision on vaccine mandates handed down by the Supremes just five months ago, there is no mention of “the right to privacy” as a reason to oppose the mandates. That was a hint that the majority on the court was actually looking at the written Constitution and what it says, rather than relying on invented rights that are not in the text. (Again, if a constitutional amendment protecting the right to privacy had been passed, the situation would be very different).
The pandemic laid bare for all to see the hypocrisy of the pro-choice movement and its supposed concern about “the right to choose.” Actually, most pro-abortion people are not in favor of choice, at least when it comes to choices that THEY disagree with, like deciding not to get a vaccine. You can’t have it both ways — either you are in favor of bodily autonomy or you are not, and the reality is that most pro-choice people are NOT in favor of bodily autonomy for other people.
Of course this argument can be turned around on anti-vaccine mandate people as well. If you are in favor of bodily autonomy when it comes to vaccine mandates, you should be in favor of women’s rights to control their own bodies. And you are going to have to wrestle with the issue of how that applies to abortion. Of course the primary argument at play here is that when you abort a fetus you are not just concerned with the woman’s life, you are concerned with the life of the baby in the womb. This post is not going to address this very thorny and contentious issue, but I will point out that I believe we must consider the issue of bodily autonomy for women when addressing the issue of abortion.
In any case, the overturning of Roe v. Wade does not mean abortion is illegal nationwide. What it means is that individual states should be able to decide policy based on the will of the people in those states. And here again we see how the response to the pandemic created a precedent for the overturning of Roe v. Wade. The vast majority of people agree that localizing pandemic response seemed to make sense. The policies that applied to New York were not necessarily the best polices for South Dakota or Wyoming. In Colorado, where I live, the policies varied from county to county and even city to city. In one city, all businesses were locked down, and in a city just five miles away, all businesses stayed open.
As I say, this localized response seemed to make sense to most people. And of course this is exactly what the U.S. Constitution says in the 10th amendment when it points out that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What this means it that almost all laws should be passed on the state level. The Constitution created a very small central government and very powerful state governments.
The pandemic reminded us, and certainly some members of the Supreme Court, that policies like abortion are best decided on a local level by the people in their own states. States like California and New York that want to keep the right to abortion should be able to do so and states like Utah and Idaho that want abortion only in limited circumstances should be able to do so.
There are two other factors that I want to mention that created the environment where Roe v. Wade was overturned. The first is the development of modern technology that shows how quickly a fetus begins to look like a child. This helped move public opinion against seeing the fetus as just a clump of cells and instead viewing the fetus as a baby.
And the other factor, and I am sorry to my left-wing/progressive/woke friends, but I must mention this because it is simply a fact: people who are pro-choice have forgotten how to make persuasive arguments. This was not the case in the 1970s when Roe was decided. And it was not the case even in the 1980s and the 1990s. But something has happened to left/progressive/woke people. Virtually all of their arguments these days are mostly virtue signaling and appeals to base emotion.
If you don’t believe me, ask yourself this: why haven’t you heard lately pro-choice constitutional scholars defending Roe v. Wade? Think about it. Almost nobody is arguing that Roe v. Wade was correctly decided for constitutional reasons. What we are getting instead are 1)vapid political statements that do not persuade 2)angry protests that do not persuade and 3)emotional appeals that do not persuade. What exactly to the pro-choice people want? Do they really think that blocking traffic and assaulting people in California will persuade people in Texas not to pass pro-life legislation? The pro-choice movement has no end game except chaos, and people still don’t want chaos, even in the latter days. The vast majority of people do not want a repeat of the riots of 2020, because that reminds them of the pandemic.
Because I am a high risk OB patient I always have early screening when I am pregnant. I would typically have my first ultrasound at 5 weeks gestation. The fetal heart beat is very clear at that state of gestation, and while the fetus doesn’t quite look like a human baby at that point, it’s most definitely on its way — the form and features of humanity are present. Technology has definitely changed the arguments around when life begins.
I appreciate this commentary today. I’ve written about my husband’s Covid19 vaccine injury a few times, and that has been a real trial for him and us this last year. He was forced to “jab or job”. The shrieking about “my body, my choice” in the last 24 hours has done nothing to warm my icy heart.
One thing that has been lost in the abortion argument is talk of responsibility. We have rights, but those rights have responsibilities attached. In the early 1960s, the introduction of the birth control pill started the great divorce between sex and maternity/paternity. Sex was now just about the pleasure and convenience of the adults involved, not taking care of the life that was created. Maybe that’s something we need to revisit as a society — because we are selfish.
What an excellent summary of the legal and cultural basis for reversing both Roe & Casey. I thank you.
There are two fundamental Constitutional principles that should constrain government action.
(1) The tenth amendment says if the Constitution does not prescribe an authority to the Federal government, then the Federal government does not have that authority.
(2) The 14th amendment says no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Bodily autonomy is extremely important and it is encapsulated in these two principles. First, the Federal government has essentially zero authority to coerce what lawful Americans must do with their bodies. The Feds know this which is why the government only imposes a vaccine mandate on foreigners entering the country. They cannot deny non-vaccinated Americans from entering.
Second, states cannot deny life, liberty or property without due process. An application of this is no state can deny life savings treatment to a person. The life of the mother does take precedence over the life of the fetus. The Federal government has the authority to enforce this principle, but it cannot rule all abortions are legal.
At the same time the states must be prudent in health related mandates. Yes, they have the authority to impose such mandates, but they must not deny a person of life, liberty or property without due process. What is due process? It is that the law is legally made and that a fair hearing of evidence is conducted. The vaccines and even most mask mandates did not respect due process. Just one particular grievance: Emergency powers that last months and years are a contradiction. The authority of a single government official or department to dictate what citizens can and cannot do violates due process.
An interesting post. But, of course, the main reason Roe was overturned was that McConnell blocked Garland from getting a vote in the Senate.
I do think your points about bodily autonomy raise important questions that the pro-life movement wants to mostly ignore. It seems the court’s approach is simply to come up with some “reasoning” to get to whatever predetermined outcome they are working towards (regardless of how inconsistent any given decision is with any other decision). Certainly Thomas’ “extra comments” regarding a host of other rights he dislikes point in that direction.
JSH, I would encourage you to take the time to read the original Roe v. Wade decision and then compare it to the Dobbs decision. Anybody with any ability to reason will clearly see the difference. The reasoning behind Dobbs is clear and consistent and actually refers to the written Constitution — Roe v. Wade makes almost no references to the Constitution itself and invents rights out of thin air. This is well known within the legal community — the legal scholars who support Roe do so because they believe a right to abortion needed to be done, and this was the quickest and easiest way to do it on a national basis. So when you refer to a court trying to get a predetermined outcome, that is clearly the case with Roe but not at all with Dobbs.
When you refer to Thomas’ references to other case, you are completely missing the point. I discuss this in the OP but apparently you missed it. The Constitution gives almost all power to the states and reserves very little for the central government. To give you several examples: education law varies from state to state, death penalty laws vary from state to state, family law varies from state to state. And so on. There was simply no reason at all for abortion to become a federal issue except that the justices wanted to make up a new law, and this is of course not their role. So, when Thomas refers to other cases, what he is saying is, again, these are not federal issues, they are state issues. I would definitely support legalized contraceptives in my state, as would 99 percent of the people, I would imagine. So Thomas is not against contraceptives — he is against the federal government intruding in areas that are not the federal government’s purview. It is a sad state of affairs when otherwise intelligent people cannot understand this very basic point, yet another sign that our education system is failing in every way possible.
It is not a coincidence that Russell M. Nelson is the prophet at this time. Here is what he has said about the subject of the OP:
“When the controversies about abortion are debated, “individual right of choice” is invoked as though it were the one supreme virtue. That could only be true if but one person were involved. The rights of any one individual do not allow the rights of another individual to be abused. In or out of marriage, abortion is not solely an individual matter. Terminating the life of a developing baby involves two individuals with separate bodies, brains, and hearts. A woman’s choice for her own body does not include the right to deprive her baby of life—and a lifetime of choices that her child would make.
As Latter-day Saints, we should stand up for choice—the right choice—not simply for choice as a method.”
https://www.churchofjesuschrist.org/study/ensign/2008/10/abortion-an-assault-on-the-defenseless?lang=eng
Very good post and comments! What would transform this ‘debate’ (which is really not a debate, but opposing groups shouting at each other) is bringing it down from over-emotional stone-flinging to reasoned discussion of all the points… like everything, I guess. I wish we could just talk, raise the different concerns, discuss them like rational, caring, intelligent people, and come to the best conclusions possible, based on that discussion. It’s so pointless to rail at others because they won’t accept your one view. That maxim, ‘seek first to understand’, would be really well served here. And in basically every contentious issue these days. The idea about respecting bodily autonomy, particularly of women who become pregnant, and for the various reasons, is legitimate; but shouted as invective against those who are seeing and caring about the other life involved, the child’s, it can’t be actually talked about. One side throws one punch, and the other throws their own. Over and over – the same punch from each respective side. It’s like Shiz and Coriantumr. (This is not to say that those on both ‘sides’ fight exactly the same, or that it’s all balanced in the insincerity and anger, etc. It really doesn’t seem to be.)