What are the chief constitutional issues and social/moral/political issues raised by the US Supreme Court's decision on Roe Vs Wade?

The US Supreme Court’s decision on Roe v. Wade was a seminal moment not just in US legal history but for US history as a whole. The landmark ruling remains controversial to this day with public opinion sharply divided on the matter. As we shall see, the legitimacy of Roe v. Wade has been long disputed and the case has impacted not upon only upon the abortion issue but also much wider constitutional issues. At its heart the debate over Roe comes down to how, and indeed if, the Supreme Court should interpret and enforce fundamental rights in a constitutional democracy. Roe also demonstrates not only how the courts shape national life but also how the world outside the courts – social protest movements, the political system and so on – shapes constitutional decisions. This essay intends to discuss the chief constitutional issues raised by the US Supreme Court’s decision on Roe v. Wade, as well as examining the and social, moral and political debates that the case has impacted upon. We shall look at the most prominent dilemmas that have vexed constitutional scholars since the Roe case, such as the problems in defining the constitutional status of unborn life and the role of the Supreme Court in a constitutional democracy. The central constitutional objections to the Roe case, namely that there is no valid constitutional foundation for the Court’s decision and that the Supreme Court overreached itself in making what was essentially a legislative decision. This paper shall also discuss the moral, social and political implications of Roe, such as the issue of when human life begins and whether a woman’s right to choose has precedence over the sanctity of human life. The effect of Roe as a catalyst for conservative and religious social movements shall be detailed, as shall the way in which these groups helped to reshape the American political landscape.
That Roe v. Wade is such a controversial and important case is partly because of the critical significance of the complex and vexing constitutional issues that it raises. It compels us to think about the constitutional status of unborn life but perhaps more pressingly it poses some fundamental questions about the role of the courts in a constitutional democracy. For example, should the Supreme Court identify rights that are not explicitly mentioned in the constitution? If so, how? Should the courts recognise and guarantee rights that are opposed by a significant section of the citizenship? If so, can this be allied with a commitment to democracy? It has been pointed out elsewhere that it is a curious fact of American life that in every generation the Supreme Court is called upon the make decisions that exemplify the contradictions and dilemmas inherent in the U.S. constitution, decisions that call into question the role of the courts in interpreting constitutional quandaries. In the 1950s and 1960s the Supreme Court had to wrestle with the case of Brown v. Board of Education; for the following generation, Roe would be the key case that came to be debated hotly by American’s constitutional scholars. However, unlike Brown, the legitimacy of which has long since been widely accepted by the public, politicians and constitutional scholars alike, the decision in Roe case remains disputed still, as we shall soon discover.
The Roe v. Wade case of 1973 saw the U.S. Supreme Court judge that state laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional. The Supreme Court decided that such laws were constitutionally unsound as they violated the American citizen’s right to privacy under the due process clause of the Fourteenth Amendment. As a result, all state and federal laws outlawing or restricting abortion that were inconsistent with the Court’s decision were overturned. Abortion was deemed to be a fundamental right under the United States Constitution. However, whilst the District Court that heard the case of Roe v. Wade ruled that the Ninth Amendment, which concerns rights of the people that are not specifically enumerated in the Constitution, gave women the right to choose to have an abortion, Justice William O. Douglas of the Supreme Court, rejected this interpretation, arguing that the Ninth Amendment does not endow a federally enforceable right to abortion. Instead the majority opinion of the U.S. Supreme Court was that a federally enforceable right to privacy: “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”As indicated above, the Supreme Court determined that whilst the Constitution does not explicitly mention any right of privacy, the due process clause of the Fourteenth Amendment should be interpreted as protecting personal liberty from state action. One of the most contentious constitutional issues raised by Roe v. Wade is this issue of whether there exists a valid constitutional foundation for the Court’s decision. Dissenting opinion at the time asserted that there was not. Associate Justices Byron R. White and William H. Rehnquist were emphatic on this point. White argued that “nothing in the language or history of the Constitution” supported the judgment and accused the Court of fashioning a new constitution right, a woman’s right to abortion, “with scarcely any reason or authority for its action”. White went onto declare that the verdict disempowered each of the fifty states and took from the right to make an informed decision on each abortion case according to its individual merits. The decision was in essence a barrier erected at the federal level which blocked the rights of the states to protect human life. It was, said White, “an exercise of raw judicial power” that placed far greater value on the “convenience” of the pregnant mother than the right of the unborn child to life.
White’s assertion that the Constitution did not support the Courts verdict was echoed by Rehnquist who made the following argument; if the Fourteenth Amendment had always enshrined the concept of personal liberty and restrictions upon state action, as was claimed, then why after the adoption of the Fourteenth Amendment in 1868 did laws limiting abortion in over twenty-one states remain in place until the time of Roe v. Wade? Surely the right to privacy contained within the Fourteenth Amendment should have meant that such laws would have been overturned, argued Rehnquist. If the Constitution, and specifically the Fourteenth Amendment, supported the right to abortion on the grounds of privacy then why had what were supposedly unconstitutional laws limiting abortion remained in place for over a century? Rehnquist doubted that the men who drafted the Amendment were completely ignorant of this right to privacy as set out by the Fourteenth Amendment. Instead he argued that when the Fourteenth Amendment was adopted the question of whether it conflicted with state measures on abortion was not raised and he used this historical analysis to conclude that drafters of the Fourteenth Amendment never intended for it to be invoked to remove from the States the power to legislate on abortion. As such, Rehnquist deemed that the Court’s verdict contravened the spirit of the Fourteenth Amendment and thus was not supported constitutionally. It is important to note that the dissenting justices in the case did not object to abortion of principle, they merely questioned the constitutional basis of the decision and were of the opinion that a woman’s decision over matters of abortion “should be left with the people and to the political processes the people have devised to govern their affairs.” It is important to recognise that opposition to Roe is not limited to conservatives or pro-lifers. Indeed, many of the most stringent critiques of Roe have comes from liberals who support a woman’s right to chose but object to Roe on constitutional grounds. The liberal critiques also tend to focus on the lack of explicit support within the Constitution for the verdict; “As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.” Roe is criticized for its alleged destruction of an emerging democratic movement to reform abortion law as well as for effectively preventing the emergence of a true democratic movement that would help to build a more solid and widely accepted foundation for the legal establishment of a woman’s right to an abortion. Benjamin Wittes, who favours permissive abortion laws, brands the commitment to Roe as an unhealthy obsession that is damaging liberalism, democracy and most importantly, those it was designed to help. Wittes argues that the abortion debate should be heard in a more democratic and accountable manner, rather than during Supreme Court nomination hearings., as currently tends to happen and he, like many others, recognises that the lack of constitutional support has led to the legitimacy problems that Roe has been burdened with since its inception. It is not without cause, Wittes notes, that in the thirty-plus years since the decision was made, America’s legal and constitutional scholars have been unable to conclusively place the right to abortion on unquestionable, or even somewhat firmer, legal grounds
As well as the principle objection that the Roe verdict was not supported by the constitution, there exists a second crucial constitutional issue that ought to be considered. Many of the opponents of the Roe verdict argue that the Supreme Court overstepped its jurisdiction and boundaries in the Roe case as it was clearly making a legislative decision. It has long been argued by critics of the Roe that, as Justice Harry A. Blackmun himself acknowledged in an internal court memo from the time, the time period of three months of pregnancy as the window when a woman could legally receive an abortion is an arbitrary distinction. Critics have argued that the Supreme Court deciding upon the period of three months was an example of it legislating social policy rather than acting in its true role as the interpreter of the law; for the National Right to Life Committee Roe represents social engineering of the worst kind. As Bob Woodward explains, these claims that the court’s decision was arbitrary and legislative are important for the Constitution grants the power to legislate only to Congress. The Supreme Court essentially has neither the power nor the authority to legislate. The acknowledgement by Blackmun that the ruling was arbitrary can also be viewed as damaging to the court’s legitimacy as the authority of the court rests upon the popular belief that the its judgments come organically from the values set down in the Constitution and that the justices transcend bipartisan politics.
The Roe case is given added constitutional significance by the fact that the legitimacy of the court’s ruling remains contentious still. It is useful at this point to compare Roe with the case of Brown v. Board of Education. Both were hugely controversial at the time, both raised the issue of the role of the courts in interpreting the constitution and both had an impact that resonated across the social and political spectrum. Brown, akin to Row, was bitterly contested in the immediate period that followed the decision. However this is where such similarities end; Brown came to be gradually accepted, it was supported publically by the civil rights movement and politically by the passing into law of the Civil Rights Act. The paradigm shift that occurred in public opinion in the post-civil rights period meant that the Brown decision came not just to be accepted but celebrated as vindication of America’s commitment to civil rights and racial equality. Whilst disputes over civil rights issues remained, particularly over the controversial matters of busing and affirmative action, the principle of the Brown case and the legitimacy of the verdict did not come into question. Brown has achieved almost universal acceptance in the way that Roe certainly has not. Roe has had not legislative ratification from Congress of the kind that Brown received with the Civil Rights Act. As shall be detailed below, Roe acted as a catalyst for the pro-life movement with the result that the decision constantly remained contested, its legitimacy constantly under attack. The question is no longer restricted to the legality or morality of abortion but now encompasses the issue of the Supreme Court’s authority to interpret and settle constitutional debates. Roe has become a totem for the Republican Party and federal judicial nominations often focus, perhaps to an unhealthy extent, on the nominee’s view of the Roe case.
Of all the issues raised by Roe v Wade perhaps the most controversial are those of morality and the question of whether abortion can be morally justified; does a woman’s right to choose have precedence over the principle of the sanctity of human life? When does life begin? Is a fetus a person, with rights conferred under law? Pro-life campaigners, who are often motivated by religious belief, claim that life begins at conception and therefore the life of the unborn child should be protected under the Constitution, specifically the Fourteenth Amendment. In the Roe case Justice Blackmun rejected such arguments from the Counsel for Texas; Blackmun declared that, within the meaning of the Constitution, a fetus was not classed as a person and moreover, if it were then the numerous instances in which the Constitution refers to the rights of a person would be blatantly nonsensical. The Counsel for Texas responded by saying that even if a fetus could not be deemed to be a person, at least under the Constitution, the state ought to protect the life of the fetus, and this life began at conception, and so abortion ought not to be allowed under law. However, Blackmun declined to be drawn on this matter, saying that “We need not resolve the difficult question of when life begins”. Yet, as Balkin points out, none of the justices felt that the right to abortion should remain right up until the moment of birth. However, though Blackmun may have been reluctant to explicitly state when life began, the trimester framework established by Roe – abortion is permitted in the first trimester – meant that in effect Blackmun found himself compelled to acknowledge that there comes a point when the right to abortion is outweighed by the state’s interest in protecting the fetus.
In terms of Roe’s social and political significance, the case acted as a catalyst for conservative and religious social movements who valued the sanctity of life over the right of a mother to opt for abortion. Roe made abortion a much more contentious political issue; Balkin points out that pre-Roe abortion was not a leading issue for either of the two main political parties in the US, the Democrats were not particularly considered the pro-abortion rights party and nor were the Republicans especially pro-choice. The Roe case helped change this. The abortion issue became a key battle ground in the culture wars, the clash between right and left from the 1970s onwards. Abortion, along with other issues such as affirmative action and busing, became part of a larger agenda which was pursued by the Republican Party and the religious right. Roe helped to reshape the political map in America. It was the Roe verdict which so outraged the religious conservatives and helped to push conservative Christian groups – which had previously been if not apolitical then at least politically passive – towards political activism. These conservative Christian groups, energized by the battle over abortion came to be referred to as the ‘religious right’ and this movement soon came to hold increasing power and influence within the Republican party itself. By the time Reagan was in the White House the religious right was a power block within the Republican Party and they were impressively effective at mobilizing their fervent grass-root support, something which granted them enormous political power, so much so that they began to be credited with the power to decide elections, even the race for the White House. The pro-life movement was instrumental in electing not only Ronald Reagan but also a whole host of other socially conservative, anti-Roe politicians. By the 1980s the Christian evangelical movement had helped to turn the Republican Party into a pro-life party; in 1980 the Republican Party platform, for the first time, called for an amendment to be made to the Constitution to protect the right to life of an unborn child. The rise of the religious right in the wake of Roe also impacted upon the federal judiciary as the Republican Party, and Ronald Reagan in particular, sought to roll back what they saw as a liberal bias in the judiciary by appointing justices who shared the values of the right of the Republican Party, such as opposition to abortion. As well as becoming a totem for conservative and religious groups, the abortion issue also became a main focus on the emerging women’s rights movement that was expanding post-Roe. Prior to Roe abortion had been considered in purely medical terms, with little concern for its ethical implications. Post-Roe however a much greater emphasis on placed upon the procreative liberty of women and the wider matter of women’s rights and gender equality.
In conclusion, there are a multitude of constitutional, social, moral and political issues raised by the US Supreme Court’s decision on Roe v. Wade. The case forces us to ask ourselves complex, difficult and at times, uncomfortable questions; When does life begin? Is a fetus a person, with rights conferred under law? Does a woman’s right to an abortion have precedence over the sanctity of human life? Roe has been criticised for not adequately settling such questions, thus keeping the abortion issue a politically contentious one ever since but perhaps Roe’s failings, such as they are, can be understood, if not forgiven, for the right of one human to take, or at least deny, life to another is an issue that has confounded moral philosophers throughout the ages. Roe’s significance is not only in the moral questions it poses but also due to the complex and vexing constitutional issues that it raises. The case shows the difficulty in attempting to identify rights that are not explicitly set forth in the constitution as well as the problems faced in a democracy when the courts recognise and guarantee rights that are opposed by a significant section of the population. As has been detailed, there remain two key constitutional objections to the Roe decision. Firstly, it is argued that there is no valid constitutional foundation for verdict. Secondly, critics allege that rather than acting in its proper role as the interpreter of the law, in the Roe case the court was making a legislative decision. These constitutional arguments have shaped the political and social consequences of the case, the most prominent of which was the way in which Roe has acted as a catalyst for conservative and religious social movements which have helped to reshape to American political landscape.