The Supreme Court Must Protect Us from Our Constitution’s Failures: Keep Roe v Wade

Nearly a decade ago I encountered a book that forever changed my understanding of the US legal system.  That find was The Collapse of American Criminal Justice by William J. Stuntz.  His writing moved me to write an article titled The Death of Justice and the Tyranny of Law.  It is now a week since the publication of a draft opinion by Samuel Alito that indicated the Supreme Court was about to overturn the fifty-year-old Roe v Wade decision.  Such a momentous decision, it seemed, could only arise from what Stuntz deemed one of the most serious faults of our Constitution: the lack of constitutional protection for our individual freedoms in the face of intrusive government legislation.

Stuntz defines two types of criminal laws.  The first are substantive in nature: defining acts that are deemed criminal and the penalties that can be imposed for this behavior.  The second are procedural in that they define which types of actions are available to policing agencies as they try to assign guilt or prevent crimes.  It would seem that a constitution would have to address the restrictions on both types of laws.  He provides an interesting comparison of the US Bill of Rights (1789) and the French National Assembly’s Declaration of the Rights of Man and of the Citizen (1789).  Only eleven weeks separated the introduction of these two documents, yet they were startlingly different in their focus.

The French focused on protecting citizens from the imposition of unjust or unreasonable laws.  Their document included phrases that would thrill libertarians today.

“Liberty consists in the power to do anything that does not injure others….” 

“The law has the right to forbid only such actions as are injurious to society….” 

“Every man being presumed innocent until he has been pronounced guilty, if it is thought indispensible to arrest him, all severity that may not be necessary to secure his person ought to be strictly suppressed by law.”

The Bill of Rights, on the other hand, focused almost entirely on procedural matters, leaving legislators the power to do to people almost anything they wished.

“Procedure dominates these texts.  Save for the First Amendment’s protection of speech and religion, nothing in the Bill of Rights limits legislators’ ability to criminalize whatever they wish.  Save for the mild constraints of the Eighth Amendment [cruel and unusual punishments], nothing in the Bill limits the severity of criminal punishment.”

To fully understand the Roe v Wade decision, one must realize that the case came up at a time when legal abortion was not available for most people.  Consequently, women who wished an abortion generally had to resort to illegal means.  The result was a bloodbath where so many women were being injured or killed that many religious organizations recognized that something had to be done.  The Court came up with a compromise that allowed abortion to be legal before the time in the pregnancy when the fetus became viable: 24 to 28 weeks.  To provide women this freedom from existing laws, the justices had to search for a justification.  They chose to identify a “Right to Privacy” as a means.  The Constitution nowhere indicates a right to privacy.  However, the Ninth Amendment does have a bit of a crack through which rights can be gained or maintained.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The “Liberty Clause” of the Fourteenth Amendment can also be of occasional use. 

“No State shall… deprive any person of life, liberty, or property, without due process of law.”

This Ninth seems to say that even if there is no explicit right specified in the Constitution, if that right already exists, it cannot be assumed that that right can be taken away.  However, this document, as are most amendments in the Bill of Rights, is so terse as to be subject to multiple interpretations.  

The Roe v Wade decision has been in place for about 50 years—two generations.  Does that qualify the right to an abortion as being a right “retained by the people?”  As usual, the Constitution is of no help, meaning that decision is determined by the biases of those who have the right to make such judgements.  Alito’s draftdoes not seem to attack the privacy right directly, only the abortion right, and that because he and his allies deem it to not have been in place long enough to satisfy them.  Alito claims that this decision would only void the right to abortion, but then, chillingly, proceeds to list things that he claims are not included such as rights to use contraceptives, for sex between persons of the same sex, for marriage between persons of the same sex, and marriage between members of different races.

Recognizing the biases of the justices presumably ready to overturn Roe, one must fear that almost any right attained in the last century could be taken away.  The limited right to abortion that has been in place is quite popular.  A large majority of citizens do not want the law changed, but that seems to be of no consequence. 

What then can angry citizens do?  They can take to the streets and let everyone know that they are madder than hell and intend to vote out of office anyone who is not on their side.  And then threaten to take away the extreme privileges that the Supreme Court justices have garnered for themselves.  Of course, the antiabortion people will take to the streets as well and make their own threats.  The only way out of the situation is if the justices become so afraid of what they have unleashed that they decide to back down and quit fomenting civil wars.

You can learn a little about a lot of things or you can learn a lot about a very few things. Guess which is the most fun.