Was Roe Good Law?

 This is a follow-up blog to my "Was Roe Bad Law?" 

In that first blog article, I noted that I believed at the core of the argument are legitimate claims on both sides rooted in worldviews. And I mentioned that states do have rights and prerogatives that could be argued by appealing to the 10th Amendment. This is apparently what the Supreme Court was doing in their reversal of Roe v. Wade. 

I also noted that I found the premise of Roe's proponents lacking by pushing the privacy matter as rooted in the 14th Amendment -- an amendment that addressed equality for former slaves during reconstruction. I thought the better argument in using the 14th would have been its expansion of federal prerogative to ensure that all the states adhere to broader national liberties. Slavery was a national concern in as much as it was a states' rights matter. It was the emphasis on states' rights that fueled the continuation of slavery. The Reconstruction amendments helped serve to quash that excuse. In the same way, women seeking access to abortion without criminality could have noted the national scope over the states' rights scope and thus piggy-backed with Roe. With regard to Roe's national address, I think it made adequate precedence in the 14th, but I thought privacy was too tangential.

Does that mean the law was good?

I cannot get behind the breadth of Roe from a moral position, but I agreed that there were indeed matters of import to privacy and privilege when considering legitimate health concerns over terminating a pregnancy. So, I guess I was neutral in a way, which fits my libertarian disposition. Yet, there is talk now and potential for the Supreme Court to overturn gay marriage, despite earlier promises against that.

Now, I believe marriage is a religious union between a man and woman for the propagation of the species in a stable micro-economic setting. I do not believe in gay marriage in equal terms. And I think government should be out of the marrying game, which would de-politicize the matter. At the same time, I recognize that we do not live in a theocracy, so my theological and ethical beliefs are independent and have no greater authority in a liberal society than someone else's views. If two gay men or lesbians want to get married, then I will not force my definition on them. I may dislike that the two forms of marriage conflate meanings, but from a libertarian stance, to preserve my rights -- my freedom of conscience -- who am I to deny that to others, even if I disagree?

Since the Court might reverse its ruling on gay marriage because it found its own precedence in Roe and therefore the 14th, all under the guise of states' rights, I am actually wary. I am not against states' rights (we are a dual-federal democratic-republic), but as an historian, I recognize how that has been used in American history to justify bigotry and marginalization. 

As a conservative, I always held to the idea of the separation of powers in government. It was a normal rallying of the Republican party to stand against what was called "legislating from the bench" with regard to judicial activism. Yet, this is exactly what the current conservative Supreme Court seems to be doing. In my opinion, they are starting to exert ideology in their decisions, rather than letting the law speak for itself in historical context. 

I am worried about the future. 

So was Roe good? 

Ethically I have issues, but from a national standard of application, I see some merit.