Roe v Wade was undemocratic

Abortion is the topic of the day as a new Supreme Court decision, Dobbs v. Jackson Women's Health Organization (i.e. 'Dobbs') overruled nearly fifty years of precedent dating back to Roe v. Wade and ended the Federally recognized right to an abortion. While the announcement triggered numerous protests the reaction, all things considered, hasn't been as extreme as I would've predicted. I wonder, perhaps, if the May leak of the Alito draft opinion, who did indeed turn out to be the decision's author, prepped everyone for this eventuality. It's interesting we still don't know what happened with that.

Moving on, even though it's hugely important to me I can't say I love talking about abortion. The emotions on both sides run so high and calm conversation can be extremely difficult. But with the news, and the coming nationwide debate, I want to at least say something. I don't plan to lay out everything I believe or what I think the best legislation or political strategy should be (and in fact I don't really know). Instead my premise is simple: Roe v. Wade (and the later, associated decision Planned Parenthood v. Casey) was undemocratic. Hopefully I can acceptably back that statement up.

The Burger Court in 1973

Let's start, of course, with some background and history. In 1973 the Roe v. Wade ('Roe') decision came out, a 7-2 ruling. It, for the first time, created the Federal right to an abortion, concluding that the Constitution included a 'right to privacy' from, mostly, the 14th and 9th Amendments. It determined that a fetus was a potential life, not yet one with Constitutional rights of its own. This right to privacy doesn't plainly appear in the text of our government's founding document and the reasoning behind the decision was controversial from the start, even among some supporters of abortion rights. But as long as the composition of the Court held and a majority continued to protect this right to privacy, it would endure.

What did Roe do exactly? It first overruled various state laws that had, before the decision, regulated abortion. It replaced those state laws with rules based on timing of gestation. During the first trimester (0-13 weeks) abortion couldn't be limited, except to establish they be performed by licensed physicians. During the second trimester (14-26 weeks) abortion could only be limited with the intention of protecting the life of the mother (I don't get this --but whatever). In the third trimester (27-40 weeks) abortion could be regulated, even prohibited, by the states but needed to include exceptions to protect the life of the mother. In sum, late-term/third trimester abortions could be stopped but all prior to that was allowed.

Roe was a seminal moment in American politics. It launched the pro-life movement, a pillar of the American right, who made its foremost goal overturning the decision. It's influenced who Republicans (and for that matter Democrats) nominate to Federal judgeships and, more prominently, to the Supreme Court. On the other side abortion was, and is, considered forever a civil right to many across the American left and middle. And from 1973 everything flowed from that landmark decision.

The battle over abortion involved another instrumental Supreme Court case in 1992. Called Planned Parenthood v. Casey ('Casey') it was the first time it appeared Roe could be overturned. Instead, in a 5-4 ruling, the Court upheld the fundamental ruling in Roe that the Constitution protected a woman's right to an abortion, though it did bring significant changes. It tossed the trimester framework and replaced it with a test of viability, linking the ability of a fetus to live outside the womb to when abortion could be limited (before viability = no regulation, after viability = regulation allowed). A key part of the ruling was that any regulations could not create an undue burden on a woman seeking an abortion for a non-viable fetus. In this decision, the five majority justices effectively saved Roe by somewhat altering the reasoning behind it, making it more about liberty than privacy, and out of respect for precedent for what was, since 1973, considered a Constitutional right. As such the right to an abortion continued beyond 1992, with Casey establishing a viability test and using the undue burden standard when state regulations were brought to court.

Because I don't want to get lost, let's reset. My statement was simple, Roe (and Casey) was undemocratic. I guess we need to briefly discuss what I mean by 'democratic,' where I purposefully used a lowercase d.

Direct, or pure, democracy is when every person votes on every matter before the people. This system isn't practical, or even possible, for a large nation such as our own and hasn't really been tried, for good reason, since the ancient Greek city-states. We are a republic, where elected officials vote and make decisions for us, at least in Congress who's supposed to be responsible for policymaking. More accurately you can describe our system of government as a 'democratic republic' as nearly every adult is allowed to vote for these elected representatives. Most states have similar systems as well based on Congress, with a bicameral body who is responsible for lawmaking, as opposed to, say, a local lord or body that's accountable to nobody and whose power cannot be checked.

What I'm trying to get to is that our democracy is designed to operate primarily through our elected bodies at both the Federal and state levels. When unelected bodies, government departments, whatever, set policy without laws passed through the legislature, this is inherently un-democratic. When the Supreme Court ruled in Roe and Casey and established rules reining in state-level abortion restrictions, this was also un-democratic, certainly compared to having elected officials decide. You can think it was the right decision, just know it was a top-down, one-size-fits-all mandate from the Court.

Associate Justice Samuel Alito

Now what happened with Dobbs? The majority (6-3) opinion, written by Associate Justice Samuel Alito, looked at common law before the Roe decision, at the changing reasoning behind the Roe and Casey decisions and what has happened since, and finally determined that the Constitution does not protect the right to an abortion. The Court overstepped its bounds and the job of setting abortion restrictions, or the lack thereof, needs to be done by elected officials. The money quote:

"Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."

That's really what Dobbs does. It stops trying to justify a right that doesn't clearly appear in the Constitution, admitting the Court made a mistake, and elected officials should be the ones making policy in this case. This is the opposite of 'judicial activism' and will result in a much more democratic outcomes. In states where abortion rights are already protected (like, for example, Minnesota) nothing changes with the Dobbs ruling. What happens next in other places will likely be very messy as laws get hashed out. But that's democracy and it's never easy. One of the problems with the Roe/Casey rulings is that we, the American people and our elected representatives, are almost 50 years behind on considering abortion policy with consequence as the Court left no real room for that. This is the beginning, not the end of the debate. So, if you have strongly held opinions, get out and contact your state reps (or Federal, but action there is far less likely). This is going to be more productive and effective than pushing for something like the impeachment of members of the Supreme Court or whatever other emotion-induced ideas are floating around out there.