40 years ago today, January 22, 2013, the Supreme Court of the United States of America deliberated on the case of Jane Roe et al. v. Henry Wade. Using the right to privacy and the due process of law clauses found, respectively, in the ninth and fourteenth amendments to the Constitution, the court ruled 7-2 in favor of granting and extending a woman’s right to have an abortion. 40 years later, and nearly every year in between, people still argue the legitimacy of the court’s decision, hoping for a future America where Roe v. Wade is overturned and a woman can no longer receive an abortion from a trained and certified medical professional without both doctor and woman facing criminal charges.
In 1973, when the decision was made, the opinion of the court cited the due process clause of the 14th amendment as proper justification for their decision. The 14th amendment, if you can remember back to your US history classes, was adopted in July 1868 as one of the post-Civil War reconstruction amendments. (The 13th amendment abolished slavery, the 14th gave equal rights to all, and the 15th gave all men the vote.) The due process clause (DPC), tucked inside section I of the 14th looks something like this:
“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.”
This specific phrasing “without due process of law” has been used by the Supreme Court to establish two different kinds of due process. Procedural due process of law represents a commitment to the fairness and equality of all procedures the law uses, e.g. everyone has the right to an impartial judge—if a judge is biased, the procedural aspect of due process is sullied. On the other hand, the substantive due process of law handles cases where the government might be overstepping its authority. So if a law takes away someone’s “life, liberty, or property” in a manner that overreaches the government’s power, it is a violation of substantive due process.
By the 1950s the phrase “substantive due process” had been referenced in at least two Supreme Court cases as a tool for representing unenumerated rights. Simply put: If the court thought the people should have a certain right but the constitution didn’t explicitly state it, the 14th amendment became a kind of loophole to justify ruling in favor of protecting that unwritten right.
You could see how this might be legally problematic in some cases: each time the court invokes the DPC in one of their rulings, they are overstepping their written powers in order to limit law from operating outside its powers.
The dissenting members of the court in the Roe v. Wade case, led by Justice William Rehnquist, wrote in the official decision:
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment right that was apparently completely unknown to the drafters of the Amendment.
Which is to say, “Hey guys! To make this decision justifiable we basically had to use a law in a way that the people who wrote it never thought possible.”
On the 40th anniversary of Roe v. Wade, Pew reports that 53 percent of people in all age groups think the issue of abortion is “not that important compared to other issues,” a number that is up from 32 percent in 2006. Pew also reports that 63 percent of American’s don’t think Roe v. Wade should be overturned. A finding that is true across all categories according to the New York Times: “Even a small plurality of Republicans think Roe should stand. White Catholics think so (63 percent). Black Protestants (65 percent) and white mainline Protestants (76 percent) agree. Only white evangelical Protestants disagree (54 percent want it overturned).”
But despite a general consensus of opinion on the legality of abortion, anti-choice forces are as rowdy as ever. In 2011 and 2012, states have passed 135 laws restricting abortions in the later trimesters of pregnancies (Roe v. Wade allows abortions in the first trimester of pregnancy but later rulings left it up to state rights to decide how to handle later stage pregnancies).
I call them “anti-choice” because that is the rhetorical antithesis to “pro-choice.” The common term “pro-life” is completely misleading as it causes people to assume the alternative is “anti-life.” No law-abiding and sane person is against life. But this clever use of language creates an emotional fever that innervates their position. Unfortunately, this is not an emotional battle but a legal one. One side advocates freedom of choice while the other demands tyrannical oppression. Let’s not bullshit here; “pro-choice” and “anti-choice” are the honest words to describe these positions.
To put the above statistics in perspective, the pro-choice side of the argument is tired and doesn’t really want to argue any more. Public opinion says that the conflict is over. But the reality shows that the anti-choice representatives are not done fighting. Bit by bit they are changing state laws to do things like lengthen waiting periods (which can often force a women into a part of their pregnancy where it is no longer legal to terminate). It’s a crafty battle (war?), and one side is done fighting and perhaps for good reason: the Supreme Court reached a decision 40 years ago.
I am man who does not have a vagina nor any other of the biological bits and pieces required to bear a child. I am not a medical professional specializing in obstetrics or gynecology. I have no real authority or expertise to qualify me for a discussion involving whether or not a woman should have an abortion. We, the people, have been plagued by a tradition of none-too-humble men who do believe they have the right to make this decision for others. And it's only proper such an egregious error be corrected
Luckily the legality of the matter does not require me to know anything of reproduction at all.
Everyone is pro-life in terms of the valuable meaning of the word. Nobody terminates a pregnancy out of malice for the potential child. Women do not have abortions because they are “sluts” or whatever other shaming words are given to them. Abortions are had because the conditions that created a child or the quality of life the child would be placed into are not conducive to benefit the aggregate quality of human life for those involved (mother, father, child).
So, It’s a simple line that you can easily fall on either side of—Do you believe a woman has the right to her body or not?
Today alone, over 14 people I am ostensibly “friends” with on Facebook passed their vote and said no by writing something about fighting to protect god’s children or stop evil-doers from hurting children. It’s a completely valid moral and religious opinion but it’s not one I want on my feed. I unfriended all of them.
Perhaps that was the wrong thing to do. Perhaps I will now be sucked into the percentage of public opinion that doesn’t think abortion is an important issue. And perhaps while I am looking away, ignorant of the anti-choice ranks, they will be building a foundation of laws and a cadre of politicians who say things like “legitimate rape” and believe it’s a legitimate phrase. And perhaps before I am aware of what has happened, they will have the power to overturn Roe v. Wade. Maybe contentment and apathy is the downfall to the pro-choice position. Because if religious zealots are anything, they are persistant, impassioned, and legion.
Here lies the deeper problem—the leaders and members of the anti-choice position have a desire for America to become a pseudo-Christian state. If you are an anti-choice supporter who is not religious please stand up, because I am not convinced you actually exist. The anti-choice position is a religious one masquerading as a legal and moral one. But it hasn’t the laurels to stand on its own without the support of members of the church.
To the members of the church who wish to see the end of abortion in America, I have a token of thought.
The government of the United States of America and the laws it enforces have an obligation to defend the freedoms of all Americans. The same principles that allow free practice of religions that are oppressed elsewhere in the world also allow women to terminate pregnancies. While this legal equality may not comfort you, perhaps your God can. While the US of A has authority over our corporeal earthly habits, your capital-g God rules over all of heaven and Earth. When it comes to final judgement, trust in your God and trust that his wisdom is superior to your own. If he has plans for those who really violated his divine intentions while on Earth, would he let them go without action? So pray as you like, and believe as you will. But while we are in America, Let Freedom Ring.