Roe v. Wade is one of the most controversial, divisive, and confounding Supreme Court cases of the modern era for the highest court in the United States. One of the largest online legal citation services in the world, LexisNexis+, shows Roe being cited 4477 times since it was decided on January 22, 1973 in a 7-2 vote by the Burger Court. The ruling struck down a Texas statue enacted in 1857 that outlawed all abortion with minor only changes before 1971. Roe is the preeminent case conservatives point to of “legislating from the bench.” Since Roe, 63+ million abortions have occurred in the United States. Abortion remains one of the most divisive issues to this day. Each Supreme Court Justice nominee under President Trump was thoroughly questioned by Democrat Senators on the Judicial Committee whether they believed that Roe was the “law of the land” and “binding precedent.” All three said yes but declined to answer how they may vote in future cases before the court involving Roe.
The majority decision in Roe is grounded in the 1965 Supreme Court decision Griswold v. Connecticut which struck down a Connecticut law which making it illegal for married couple to use contraceptives to prevent pregnancy. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). This ruling cited the 4th, 5th, and 9th Amendments, as well as the 14th Amendment (the “penumbras”) which were used to broadly strengthen privacy rights of individuals in their homes collectively creating the right to privacy. The majority, however, disagrees with the notion that this gives the mother an absolute right to an abortion whenever, however, and for whatever reason. Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct. 705 (1973). The Court further explains that the compelling state interest in life within the womb must come into existence at some point, but the court does not believe that it comes at conception. Id. at 157. The court is certain that the definition of ‘person’ within the Fourteenth Amendment does not include the unborn. Id. at 158. Still, the court believes that the compelling state interest in the unborn begins at its viability. Id. at 163. “State regulation protective of fetal life after viability thus has both logical and biological justifications.” Id.
Legal commentators often point to the Court’s use of trimesters to define when abortions may be restricted by states, attempting to say that the Court ruled that abortion could not be restricted before the third trimester. However, even a shallow reading of the Court’s decision reveals that it never gave bright line dates, noting that viability of the unborn even in 1973 was up for debate in the medical community, varying from ‘about seven months’ to 24 weeks. Id. at 160. The Court quashed this trimester idea nineteen years later in Planned Parenthood v. Casey, affirming that the Roe rule drew the line at viability, not trimesters. Planned Parenthood v. Casey, 505 U.S. 833, 870, 112 S. Ct. 2791 (1992).
Unfortunately, the Supreme Court has not shown a likeliness to stray from Roe, stressing the importance of stare decisis despite having reversed itself previously in cases like Brown v. Board of Education. With a new solid majority of 5-4 (lets be honest about the Chief Justice) thanks to President Trump, hopefully the court will once again find itself faced with the issue of ruling on abortion. With the growth of the popularity of heartbeat bills in many conservative states–followed by their smack down in the federal courts–and the continuing medical growth of the viability of the unborn, it is time for the court to once again take the reigns and find itself in reversible error as it has done in cases such as Brandenburg v. Ohio, Citizens United v. FEC, Katz v. United States, and Gideon v. Wainwright.
May the Gadsden lead Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas in preventing the 63 million from becoming more.