Wednesday, June 29, 2005

Roe V Wade and Judicial Activism

Just So You Know

Commenter Bram offered Roe v Wade as an example of judicial activism.  Is it?  I think it is not, and here’s my reasoning.

Roe v Wade is a decision that is often discussed, but rarely read.  I just went and read it, and I think you should too.  There’s a lot of historical ground that the decision covers.  This is not a matter of “inventing” a right to abortion; nothing of the sort took place. 

Very specific constitutional grounds were specified in Roe’s appeal—privacy and liberty.  Roe did not argue she had a “right” to an abortion; she argued that she had the liberty to do as she pleased.  Your liberty and privacy are guaranteed by the constitution, and as such preempt state law.  So the question before the court was, can a state impose in liberty and privacy in this manner?

You gotta read the whole thing, but the thinking is something like this:

  • There’s an ancient concept called “quickening”, marking the beginning of life, possibly a “Person”.
  • Medical science puts detectable quickening (movement) roughly around the end of the first trimester.
  • There is tremendous variation in thought over when quickening occurs, but believing it occurs prior to the end of the first trimester is a religious decision.  The constitution contains no definition of the word Person.  We cannot apply “Person” prior to the end of the first trimester unless religious grounds are used.  State abortion laws are predicated upon defining prenatal beings as “Persons”.
  • The state does have an interest in protecting life and as such may make legislation regarding abortion.  This interest must be balanced against the constitutionally guaranteed liberties of the persons involved.
  • Prior to the end of the first trimester, state laws restricting abortion do so by imposing a standard derived from religion, not science.
    • By no means did the court confer an arbitrary right to an abortion.  Rather, the court struck a careful balance between personal liberty/privacy, guaranteed by the constitution, and states’ interests.  It drew the line at the boundary between religion and science.

    I really don’t want to provoke an abortion war, but I think it’s worthwhile to note that the tenor of this decision follows the pattern I’ve noted:  A difficult issue, subject to considerable subjective analysis, but still requiring a decision to be made.  This is not a simple issue of states’ rights.  States may not make laws that violate the constitution, and Roe raised a serious and substantive constitutional challenge.


    Posted by Ross on 06/29/05 at 02:50 PM
    Just So You Know • Permalink