The debate on the morality of abortion is often brought up when discussing Roe v Wade, but this overlooks the simple question the judicial branch is supposed to determine: is it constitutional?
The Supreme Court ruled 7-2 that states’ restriction of abortions is unconstitutional. Justice Blackmun, the writer of the Court’s opinion on Roe v Wade, ruled that the 14th amendment protects the right to an abortion. He took the right to privacy in the Due Process Clause to be broad enough to encompass the right to an abortion. Roe v Wade essentially legalizes abortion at any stage.
The use of the right to privacy clause in the 14th amendment to protect abortion is absurd, because in reality it should protect the unborn baby. The clause says
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
If unborn babies are legally considered persons, then they would be protected under the constitution.
Instead of following the constitution, the Justices of 1973 decided to do the job of the legislative branch. Some of the Justices realized that they were not following the duties of the Judicial Branch, but Justice Blackmun convinced them to continue anyway. They based their ruling on fabricated statistics and personal feelings.
Constitutional scholars, left and right, widely agree that the ruling is ridiculous. Harvard Law Professor John Hart Ely, who supports legalized abortion, wrote, “Roe is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Even far left Justice Ruth Bader Ginsburg has spoken out against the ruling.
It is even more obvious that the Constitution does not approve of the decision when we consider those responsible for the 14th amendment. When Congress ratified the 14th amendment in the 19th century, abortion laws were ramping up at the state levels. The idea that those who ratified the 14th Amendment would approve of mandating legal abortion nationwide is laughable. Justice William Rehnquist considered this in his dissent to Roe v Wade, “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”
It is not the job of the judicial branch to make laws, and this is what they have done far too often. Creating laws is the job of the legislature, which is elected by the people. Roe v Wade stepped over an entire branch of government to enact a law that affects all 50 states, whether they wanted it or not.
It will stand next to the Dred Scott and Korematsu decisions as historically awful.