- This has always been the choicest part of Roe.
- IMO they could have added the Third Amendment.
- But this right of privacy and the reference to penumbras has always been this opinion's weakness. I say that because people read this when it came out and since as the USSC inventing rights. Just rely on the 9th Amendment, that one says it all, and that is that all rights not expressed by the Constitution are reserved to the People. Boom, done. However I think the Court felt that the 9th has certain unfortunate states rights implications and they did not want to endorse that potentially very powerful and liberating Amendment. I think a lot of liberals still feel uncomfortable with this.
- Also, privacy is not at issue here (though I am big advocate of that), it's the right to have or not have a surgery. What if the government were to issue a law stating when people must have an abortion? What if the government ordered men undergo sterility or vasectomy operations under certain conditions? This seems to me to be the flipside of the same issue of state power.
- The opinion does not give women sole control over her body. The USSC was explicit about that.
I agree with all of this. There may be something like a right of privacy emanating from the penumbras of the Bill of Rights, or in the Ninth Amendment, or as part of the liberty protected by the 14th Amendment ... with the Ninth Amendment probably being the best candidate, IMO.
But abortions aren’t very private affairs. The right of privacy was solidified in
Griswold, the contraception case, because what happens in the bedroom is nobody else’s business. Although
Griswold and
Roe both involved reproductive issues, the domain of
Roe’s was not the bedroom. I feel like the
Roe Court shoehorned abortion into privacy because they wanted it to seem like a natural extension of the same right announced in
Griswold rather than yet another newly identified constitutional right.
In any case, I think a good case can be made for a constitutional right for a woman to make her own reproductive choices. I would have emphasized the Ninth Amendment more, but he 14th works as well. Either way, while it’s not a slam dunk, I’m on board with calling that right ‘fundamental’ and applying heightened scrutiny to any government infringement of it.
The more questionable aspect of
Roe, to me, is whether laws prohibiting abortion can meet that heightened scrutiny. To violate run-of-the-mill liberties, a state has to show that its law is rationally related to a legitimate governmental interest. To violate a fundamental right, a state has to show that its law is narrowly tailored to serve a compelling state interest.
Protecting the lives of fetuses is certainly a legitimate interest of a state, same as protecting the lives of certain owls or whatever. But is it compelling? That turns on how much value people put on the lives of fetuses, which seems like something that should probably be determined by the people themselves, through their legislatures, rather than by judges. I don’t want to automatically defer to states about what they find compelling and what they find merely legitimate, but the importance of protecting the lives of fetuses seems like an especially good candidate to defer to the people on. So I’d grant states that their interest in protecting the lives of human fetuses can be compelling.
Are laws prohibiting abortion narrowly tailored to serve that interest? It may depend on exactly how they’re drafted, but in general, I can’t think of a less intrusive means of protecting fetuses.
So while I recognize that it’s a hard case in several respects (and I’ve flipped back and forth on it a number of times), my own feeling is that
Roe was probably wrongly decided back in 1973. Does that mean it should be overturned today? That’s also a hard question because there is value in the principle of
stare decisis — the idea that we don’t want major laws to change every time the Court changes its composition. Here’s where I think it matters that
Roe isn’t obviously bad policy the way
Dred Scott was. I’d be much more inclined to overturn a case that was disfavored by a strong majority of the public than one that most of the citizenry have come to accept. But I don’t think it’s a slam dunk.