On Roe v. Wade’s Impending Collapse and the Fight Against Living Constitutionalism. 

roe v wade
Protest marchers form a ‘ring of life’ around the Minnesota Capitol building protesting the US supreme court’s Roe v. Wade decision, 22 January 1973. Photograph: AP

September 4, 2021

The Difference Between Being Against Roe v. Wade and Being Against Abortion.

Abortion, like most hot-button political topics, provoke controversy and outrage. One side sees it as an attack on the bodily autonomy of women, the other sees it as the murder of unborn children.

Here’s a dirty little secret some of our readers at American Pigeon may not like: I’m not an enthusiastic pro-lifer. I was raised by a single mother who has been a hospital nurse for the entirety of her adult life and is now a nurse practitioner. Conversations on the topic of abortion were always interesting with her, as I had the unique opportunity of confiding in someone with an expert medical opinion in the comfort of my own home. My mother (who is also a conservative and has voted as such in every election since W. Bush) is also not a terribly enthusiastic pro-lifer. In fact, she identifies as pro-choice. This is because, like most Americans (but with the added benefit of medical experience in women’s health), she believes that there are certain cases where abortions are medically necessary as well as justified. 

Abortion is a complicated issue that is often erroneously over-simplified and reduced to pro-life versus pro-choice. But such a paradigm hardly acknowledges the complicated set of factors that exist on both sides of this debate. Roe v. Wade, for example, was decided in the 1970s, where women didn’t have access to advanced forms of contraception like Plan-B or other birth control medications. With modern contraception being far more effective and accessible, do Democrats really have the excuse to pass laws that remove all limitations on abortion? In addition, do women really have the excuse to wait as long as they want to get an abortion because of their “bodily autonomy”? Does the development of the fetus not at some point check and balance the woman’s claim to bodily autonomy so as to not deny the humanity of a fetus that is already too far along in pregnancy?

And what about the pro-life side? Is six weeks of pregnancy really enough time for women to make an informed decision regarding whether or not they want to get an abortion? Are we really going to prohibit abortions in cases of rape or incest?

Regardless of what your feelings are on this topic, I do believe it is very important, especially for conservatives, to highlight the clear (and yet all too often ignored) distinction between being against abortion and being against the Roe v. Wade decision. 

Both those on the left and right, caught between the vast folds of the zealous undertones that inevitably exist in their fight to either ban abortion or erase all limitations on it nationwide, naively believe that abortion in America will come to an end if Roe v. Wade is overturned. 

Nonsense. 

If Roe v. Wade’s collapse comes to pass, it will not bring an end to abortion, it will merely return to being an issue that is to be decided among the several states – and rightfully so. Predominantly Democrat-controlled states will continue to pursue a legislative agenda that promotes abortion, and Republican-controlled states will do the opposite, just as it is right now. 

With this in mind, we now begin to shift our focus from the issue of abortion itself to the issue of Roe v. Wade as a matter of constitutional law. My issue with Roe v. Wade was never necessarily motivated by a moral grievance toward abortion. I don’t necessarily believe in swearing allegiance to the “pro-lifers” or “pro-choicers” who continue to deny the medical and cultural complexities of the issue for the sake of partisan expedience. 

I do however believe that such a challenging topic should be given back to the people of the several states to debate, discuss, and resolve it for themselves in a manner that is most appropriate for that state and the numerous little communities within it. 

To me, the fight against Roe v. Wade represents a broader fight against living-constitutionalism, a judicial philosophy that I, along with many other conservatives, loathe. 

Living constitutionalists aren’t necessarily unified in their thinking and may agree or disagree with each other on a number of issues pertaining to the interpretation of legal texts. It is generally correct, however, that living constitutionalists hold that the Constitution is unjustifiably vague in some areas, as well as unacceptably rigid in others, and therefore would prefer that the courts construct the basis of constitutional law themselves in the areas where the Founders are believed to have failed in their drafting of the document. 

A dirty secret that most living constitutionalists don’t want you to know, however, is that most of them have a profound disdain for the Constitution’s rules and standards. They hate the fact that the Constitution is vague in the sense that it doesn’t provide the people, states, or federal government clear directives regarding how to act on specific matters of policy as it relates to political issues. The Constitution, of course, leaves these issues to be discussed and deliberated by the people of the states, as well as the governments of those states.

U.S. Supreme Court Associate Justice Neil Gorsuch hits the nail on the head in a column he wrote for TIME Magazine:

“I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.”

Precisely.

If the Constitution can truly change at the whims of a judicial interpretation, then what is the point of a written national charter to begin with? What does it matter what we write down if the text isn’t actually interpreted for what it means in accordance with when the text was written? That’s essentially the equivalent of reading a novel, putting it down, and then picking it back up and suddenly deciding that the text means something entirely different. It makes no sense. 

Roe v. Wade was decided after the Supreme Court ruled 7-2 that women had the right to receive an abortion under their “right to privacy” in the Due Process clause in the 14th Amendment. But the 14th Amendment, the Due Process clause specifically, states nothing of privacy being a constitutionally ordained right. In other words, the Supreme Court found a “right” in the Constitution that didn’t actually exist. 

It is judicial interpretations like these that belittle and cheapen the meaning and weight of the written Constitution in favor of a whimsical unwritten one that is almost solely at the mercy of, as Justice Gorsuch says, philosopher-king judges. 

Senator Elizabeth Warren, in response to Texas’ recent abortion law, told Joy Reid, on MSNBC’s The Reidout, that Congress should pass its own version of Roe v. Wade. Most conservatives would of course be up and arms over such a law, but at least it would be in adherence to the Constitution, where the legislative – not the judiciary – makes the laws. At least in that scenario, the people’s representatives could discuss and debate amongst themselves as to whether or not they should pass such a law. Such a process would be a lot slower as well as far more politically painful, but the legislative process wasn’t designed for speed, it was designed to promote slow, gradual, and prudent decision-making. 

In investigating such a scenario, we begin to see that Roe v. Wade has denied the American people the opportunity to debate and deliberate the issue of abortion amongst themselves, either within their own states, or in Congress. The issue of abortion being so politically painful to discuss can certainly be seen as a testament to what happens when an impatient American public that struggles with delayed gratification hastily defers important political decisions to an unnaturally empowered judiciary that is expected to somehow magically ordain all the answers to our most pressing policy questions.

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