Was Roe Bad Law?

 

OK. This blog is NOT about the efficacy or the moral matters surrounding Roe v. Wade in as much as it is about the Constitution. 

The 1973 Roe v. Wade decision rested on the due process clause if the 14th Amendment, which says, "nor shall any State deprive any person of life, liberty, or property, without due process of law." The context of this was in regard to ensuring liberty for emancipated slaves. Granted, the amendment is general enough to apply broadly, but the proposition of Roe's proponents was that the right to privacy between a pregnant woman and her doctor was what was protected by due process. To an extent, I agree with the need. 

There must be privacy within medical matters, especially when it is as sensitive as pregnancy complications. I do see warrant to preserve a woman's life when a pregnancy is at high risk. The decision to abort in such matters should be privileged to medical privacy in much the same way as other cases of doctor-patient confidentiality. My problem with Roe is that it blurred the lines and it rationalized abortion in fairly untethered ways that extend beyond the matter of privacy. Though a slippery slope is a logical fallacy, the deference of the law rested on the "qualified" agency of a woman [and her physician] to determine abortion's merit. This vagueness has allowed for numerous apologetic approaches as to what constitutes human life and what makes for just cause for an abortion, which can include everything from  economics to lifestyle to criticism of the foster/adoptive system as an option. This opened-gate is what has incensed pro-life people, who have an alternative epistemology that is equally arguable to liberty, though for the unborn. That has led to gross abstractions, which I won't address here.

What the Supreme Court did do recently effectively ended abortion as a national institution. I think that this is justified for a few reasons. First, I think the Roe case overreached in its use of the 14th Amendment as a rationale for medical privacy, though I think the privacy argument has merit to a degree. It would have been better argued as flowing from the 9th Amendment, which acknowledges that rights are not only those things enumerated in the Bill of Rights (which the 9th is part of) or amendments to it. The Supreme Court has punted this to the states (per the 10th Amendment), which is fair. The only caveat I have is that the Reconstruction Amendments (13th-15th) did effectively broaden federal powers on matters applicable across the states, which would have been the better argument using the 14th Amendment than the element of privacy. Still, states do differ and do represent their members. The 10th acknowledges the prerogative of the states in non-federal matters and the 9th gives federal protection for rights outside of those enumerated. 

Now, I do believe that some national recognition of privacy is due for medically necessitated abortions, but I think non-medical cases were and are overreach. Most of these cases are economic, which could be addressed through an expanded education and welfare system, which most conservatives would decry, sadly. I do not. I see the need for a stop-gap.

Next, since the battle is over epistemologies or worldviews, with one placing the liberty of women in primacy and the other the life and liberty of the unborn, it really comes down to whether the fetus is a living human being. The fetus has to be dehumanized for the former and elevated for the latter. This is a disagreement that seems perpetual. Without yielding to theology, my take is that it is safer to err on the side of life than to wrestle over nuances. Some will posit that abortion saves mother's lives and so it does consider life. This is a logical fallacy itself  (two wrongs do not make a right). Still, a mother has agency where the unborn does not, so the decision to abort comes with its own consequences. Instead of abortion, alternate support and welfare structures could be established as buffers.

Murder is wrong and even pro-choice people acknowledge that. Science does demonstrate that an embryo's cellular reproduction is independent and carries a distinct DNA than either parent, so it is human. Viability is what's argued next, but a baby born is still not viable if left alone, so it is largely rhetorical and based on whether the cells are recognizable as human or not. The debate will continue, so erring on the side of life makes the best sense in my opinion. If not, then shall we reconsider other moral principles? Is the cellular mass of a homeless man, who is essentially useless to society, open game since he can be a drain? Yes, that is a slippery slope argument and is not good for logical debate, but the consideration of relative rationale permeates the debate in the background. How much is too much? I recognize that some abortions are medically necessary, but I do think the door opened too wide because of Roe and is an imbalance politically and socially. 

This will certainly be an ongoing consideration.