Why Roe Should Be Overturned

In the span of it’s existence the U.S. Supreme Court has handed down thousands and thousands of decisions, ranging both in issue and impact. However only a handful of cases have achieved lasting historical impact and defined and influenced the generation in which they were handed down.

Marbury v. Madison stands as the Marshall Court’s most infamous decision, and it was emblematic of that court’s significance in defining the role of the judiciary and the national government in our republic’s infancy. Dred Scott v. Sanford struck down the Missouri Compromise and subsequently the tenuous cease-fire that existed over the issue of slavery, paving the way for the Civil War and slavery’s abolition. Plessy v. Ferguson was instrumental in defining the new order following the Civil War and reconstruction by introducing the age of de jure segregation, an age which mercifully ended with the court’s ruling a generation later in Brown v. Board of Education. And last but not least, the court decision that has largely defined (and divided) this generation was the court’s ruling in Roe v. Wade, which set off a thirty year debate over the issue of abortion that continues to this day.

Personally I believe abortion is a detestable practice that should be limited to only cases of rape, incest, and necessity to the mother’s heath. Abortion takes the gift of life from those it destroys and it robs society and future generations of the unique gifts and talents that each human life possesses. It’s negative effect isn’t limited to the unborn either, for the decision to end the life of their children often afflicts the mother throughout her life.

However none of this carries any relevance in regards to the legal questions involved in Roe v. Wade and ultimately why the case should be overturned. In it’s decision, the court followed the precedent it had set in Griswold v. Connecticut by ruling that although there is no explicit right to privacy written in the constitution, the First, Third, Fourth, and Ninth Amendments constitute a "penumbra" of privacy rights that guarantees the right to receive an abortion. Such reasoning is disturbing, for when issuing a decision the Supreme Court should always follow the text of the constitution and what the framers intended it to mean. I very much doubt that when ratifying the above amendments the framers intended to create a "penumbra" guaranteeing the right to privacy.

Instead, when the framers saw an absolute right to privacy they clearly enumerated that right in the constitution: the right to freely practice religion in the First Amendment, the right to dominion over one’s home in the Third Amendment, and the right to resist intermittent and unreasonable government searches and seizures of one’s personal property in the Fourth Amendment. There are other examples as well, but arguing that these clearly enumerated rights of privacy added together insure a broader right to privacy that includes the universal right to receive an abortion is at best dubious.

Seemingly lost on the court was the clear guidance the framers left future generations in regards to such an issue, for the Tenth Amendment states that all powers not given to the national government, or prohibited to the states, belong to the states, or the people. In essence, when the constitution is silent on who power or jurisdiction belongs to it automatically belongs to the states or the people by default. If anyone doubts this they simply need to refer to the words of the constitution’s father, James Madison, who in Federalist No. 45 stated that the powers of the states are "numerous and indefinite", and include "all objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people." This stands in stark contrast to the powers of the national government, whose powers are "few and defined", and which extend mainly to "external objects, as war, peace, negotiation, and foreign commerce".

Nowhere in the constitution is the power to regulate abortion given to the national government, and nowhere in it is it denied to the states. Therefore, the court’s decision, which disregarded and overturned numerous state statutes, was in error and the court’s judgement in Roe v. Wade should be reversed. Abortion is a state issue and the power to decide it’s legality belongs to the states and the sovereign people, not an oligarchy of nine.