The Right — and Wrong — Way to Overturn ‘Roe v. Wade’
COMMENTARY: If the Supreme Court’s six originalist justices are truly originalists, they will end abortion altogether in their ‘Dobbs’ decision, which should have happened in ‘Roe.’
Roe v. Wade is not long for this world. When the Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization on Dec. 1, most of the justices seemed ready to roll back the 1973 decision that forced abortion on the United States and poisoned our national politics.
Yet there’s a right way and a wrong way to overturn Roe, and, right now, the Supreme Court seems likely to make a profound mistake.
It’s not enough simply to return abortion policy to the states, as the justices seem inclined to do. The Constitution requires ending abortion altogether.
When Roe v. Wade was decided in 1973, the Supreme Court didn’t just overrule the 46 states that refused to allow abortion on demand. The Court also rejected the understanding of personhood contained within the Constitution. Roe is based on the 14th Amendment, which says states shall not “deprive any person of life, liberty, or property, without due process of law.” While the Court defined “person” to mean a mother and no one else, the 14th Amendment was unquestionably written to include unborn children.
This fact has been decisively proved by constitutional scholars, who have picked apart the words and writings of the 14th Amendment’s drafters, as well as the legal texts that guided them.
In the 1960s, it was universally understood that unborn children were people and therefore deserve the protection of the law. Not only can their life, liberty and property not be taken away without due process of law, but they are also covered by the 14th Amendment’s promise of “equal protection of the laws.” Abortion profoundly violates both of these constitutional guarantees.
The Supreme Court ignored this reality in Roe, effectively rewriting the 14th Amendment to exclude the unborn. It was a fundamental violation of the Court’s role in America’s constitutional order.
The unelected justices have no authority to change the meaning of the Constitution’s words, which is something only the American people can do, usually through our elected representatives. Instead, justices must understand and enforce the Constitution’s plain and unchanging meaning, anything beyond which opens the door to judicial dictatorship. This is the doctrine of originalism, and, today, six of the nine Supreme Court justices call themselves originalists.
Given the history and text of the 14th Amendment, Roe should have declared that abortion is a violation of unborn children’s constitutional rights. That was, and is, the originalist argument. Not only does the meaning of the 14th Amendment prove it, but so does the fact that a clear majority of states criminalized abortion when the amendment was passed, on the grounds that it constituted the killing of a person.
Instead, the Supreme Court chose the political and activist route, mandating abortion nationwide. The outcry at the time was massive, and even prominent liberal scholars who supported abortion publicly argued that the Court’s decision was constitutionally indefensible.
Yet ever since, Roe’s opponents have largely avoided the question of whether unborn children are people. Instead of basing their opposition on the 14th Amendment, they’ve rallied around the strategy of returning abortion policy to the states.
The current Supreme Court appears ready to accept that argument. Yet returning abortion policy to the states is as unconstitutional as mandating abortion nationwide. Both approaches involve substituting a justice’s opinion for the Constitution’s plain meaning, which, in this case, is the 14th Amendment’s protection of people, including the unborn. Both approaches allow something the Constitution prohibits. Whether abortion is mandated nationwide or allowed by individual states, it conflicts with America’s governing charter.
If the Supreme Court’s six originalist justices are truly originalists, they will end abortion altogether in their Dobbs decision, which should have happened in Roe. There are those who say that returning abortion to the states is the prudential path and that it’s better to go slow and be incremental. But the Constitution does not give them that choice.
Either the 14th Amendment means what it says, or it’s meaningless. The Supreme Court already tried to render it meaningless nearly 50 years ago in Roe v. Wade, and, ever since, abortion has roiled our country and claimed tens of millions of lives.
The justices have an opportunity — and an obligation — to right that wrong. The Constitution demands it. The unborn deserve it.