Protect Roe v. Wade


Photo by Anna Berkheimer

Pro-choice protesters voice their disdain for the leaked Supreme Court draft opinion. Photo courtesy of Anna Berkheimer.

Shalla Bowers, Reporter

The Supreme Court case Roe v. Wade is objectively constitutional and necessary to the societal progression of the United States.
The 1973 Roe v. Wade case was decided on a 7-2 majority decision. One of the concurring judges, Justice Blackmun, said that the case was decided from an implicit reading of the Due Process Clause in the 14th Amendment to the Constitution, which stated that “…nor shall any state deprive any person of life, liberty, or property, without due process of law”.
Conservative Supreme Court Justice Samuel Alito’s leaked draft decision mainly critiqued this implicit lens used to view the Constitution when deciding this case. He cites that “the Constitution makes no reference to abortion”, and that while the Due Process Clause can protect rights not explicitly in the Constitution, they must be “deeply rooted in this nation’s history and tradition”.
This is an extremely restrictive view of what is constitutional and what isn’t. Justice Alito explained that other cases based on implied readings of the Due Process Clause (such as cases legalizing interracial and same sex marraige) would not be affected by this ruling. However, these cases would have never been decided if it was not for a logical extension of the 14th Amendment by Supreme Court Justices. Interracial and same sex marraige, at the time decided, were not practices deeply rooted in our nation’s history, but are not being contested by Justice Alito.
This lack of judicial consistency is later explained by Justice Alito, citing that “none of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion”.
This logic is fallible and inconsistent, because although Justice Alito views Roe v. Wade as different from the other cases mentioned in his draft because of the morality involved, morality is subjective. Using a single person’s moral convictions as a basis for what is right and wrong is ineffective and exclusionary to other people’s belief systems.
In this instance, it is also disastrous to any court decision made on the basis of the 14th Amendment. Although Justice Alito claims that other cases decided on an implicit reading would not be affected, overturning Roe v. Wade completely destroys the legal backing for these cases.
Justice Alito’s decision also fails to recognize another important part of the Constitution: the 9th Amendment.
This Amendment reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”. In other words, rights not directly in the Constitution can still belong to the people if federally recognized. The right to privacy and to have the choice to abort a pregnancy was guaranteed by Roe v. Wade, making them unenumerated rights that do not need to be in the Constitution verbatim to be constitutional.
The 9th Amendment proves that our founding fathers, the author’s of the Constitution, intended for their work to not always have a literal interpretation. Without implicit interpretations, adapting to change is all but impossible.
Solely interpreting a case based on an explicit reading of the Constitution is harmful because it undermines the purpose of the Constitution in the first place: societal progress.
Many significant civil rights victories were due to a non-literal reading of the Constitution. For example, before the 13th Amendment was ratified, the Constitution actually included provisions that validated the existence of slaves (such as the ⅗ compromise, which said that enslaved people count as ⅗ of a person when deciding Congressional representation). Despite no indication that the founding fathers were against the idea of slavery, an amendment that criminalized slavery was passed in 1865. Implicit readings of the Constitution are absolutely necessary to ensure that America is a country where, as the Declaration of Independence says, “all men are created equal”.
Overturning Roe v. Wade would cause a disastrous butterfly effect on the American judicial system. Without it, indirect readings of the Constitution are no longer valid. This case is a necessary and constitutional legal precedent needed to ensure that, now and in the future, America can truly have liberty and justice for all.