Why Roe v. Wade must be upended

On Sept. 17, we once again commemorated Constitution Day, the annual observance of the day in 1787 when the framers at the Constitutional Convention in Philadelphia signed the U.S. Constitution for ratification by the people in the individual states. The Constitution is a reminder that we the people subscribe to the rule of law and to a binding statement of the structure of our government and our rights, in order to, among other things, “establish justice.”

Professor Cass Sunstein, professor of law at Harvard Law School and an informal adviser to the Obama campaign, argues in a Sept. 14 op-ed for the Boston Globe that “the fate of Roe v. Wade...is now hanging in the balance.” He insists that it is “crucial” that this case not be overruled, because overruling it would “throw an established domain of human liberty into turmoil,” “disrupt and polarize the nation,” and “threaten countless doctors, and pregnant women and girls, with jail sentences and criminal fines.”

He frankly acknowledges that the 1973 decision, which effectively proclaimed a right to abortion-on-demand, “failed to root the abortion right in either the text of the Constitution or its own precedents.” That being the case, of course, there was no justification for the decision, since the only justification for judicial review and the Supreme Court’s invalidating laws is that the laws violate a principled reading of the Constitution’s text. Judges should not be able to void laws with which they happen to disagree, absent constitutional warrant.

Nor does the fact that the Court reaffirmed what it called the “essential holding of Roe” in 1992, and thus treated Roe as precedent, change the matter. Building on a bogus foundation is a bad idea: “nonsense on stilts,” one might say.

Sunstein, along with Justice Ruth Bader Ginsburg, now suggests that “Roe v. Wade is best seen, not only as a case about privacy, but also as involving sex equality.” Why a mother’s right to kill her unborn child should be considered a requirement of equality between the sexes escapes me. After all, fathers have absolutely no say in the matter. The Court has said that spousal notification laws are unconstitutional, too.

Sunstein says, correctly, that “It is no wonder that millions of Americans felt, and continue to feel, that the court refused to treat their moral convictions with respect... No one should disparage the convictions of those who believe that abortion is an immoral act.” The reason abortion is considered immoral, though, is significant: Abortion is the direct taking of innocent human life.

That is not a matter of religious belief, any more than opposition to human slavery is simply a matter of belief. Abortion is gravely wrong, just as slavery is. These are objective moral truths, as in “We hold these truths to be self-evident, that all men [and women: all human beings] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The Supreme Court once ruled, contrary to those self-evident moral truths, that slaves, being property, had no rights. The only ones who had rights were the slaveholders. It took a bloody Civil War and several constitutional amendments to reverse that decision. In Roe it ruled that unborn children had no rights: the only ones with rights were the mothers. Until that fundamental moral wrong is righted, the Supreme Court has made a mockery of the Constitution and of justice.

Justice is a two-sided scale or balance. Defining one side out of the balance is hardly calculated to “establish justice” or “insure domestic tranquility.”

Overturning Roe would simply return the subject of abortion regulation to the states and to the democratic process. In a place like Massachusetts, unfortunately, probably nothing would change in our abortion laws.

It is Roe that continues to “disrupt and polarize the nation,” by politicizing and corrupting the judiciary and poisoning the judicial nomination process -- all because judges have not only usurped the people’s role in a democracy but have even assumed a god-like authority to decide all questions, even those outside their mandate, without God’s wisdom or the semblance of infallibility. God help us if justice continues to be denied the unborn.

Dwight G. Duncan is a professor at Southern New England School of Law. He holds degrees in both civil and canon law.

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