Roe vs Wade

It really irks me when falsehoods are used to support a position, and in this case it is the New York Times editorial on Judge Alito.

The NYT have said “Nearly 70 percent said they would oppose Judge Alito’s nomination if they thought he would vote to make abortion illegal – which it appears he might well do.”

This is quite simply wrong and shows a total misunderstanding of what Roe vs Wade was and is about. The constitutional status of abortion is the US is not simply a matter of legal vs illegal. It is a matter being a constitutional right or not – and that is a huge difference.

As an example, if tomorrow the Supreme Court reversed itself and threw out Roe vs Wade, would that change the legality of abortion at all? The answer is no. Abortions would still be legal. However state governments could, if they so chose, pass laws over time restricting abortions. Incidentially they already do pass such laws – such as time limits so one can’t abort at week 35, so Roe vs Wade is already not an absolute.

Now with 70% of the population favouring legal access to abortion, it is in fact quite possible in most areas there would be no change at all. Certainly the notion put forward by the NYT that the Supreme Court can rule abortion illegal is fanciful. They can not. They can simply uphold, or not, the legality of laws passed by legislatures or by referenda.

Many people outside the US, including myself initially, can’t work out why abortion is such a big issue in the US. The reason is Roe vs Wade. Conservatives believe it was an outraegous stretching of the Constitution to read into it a constitutional right to abortion. They believe that it was wrong for five Supreme Court Judges to decide this issue, rather than the people or the legislatures who do so in pretty much every other country. By having the Supreme Court deicde, it has removed the ability of the people to decide – and that is why so many conservatives want to see Roe vs Wade over-turned. They don’t want to then outlaw abortion (Ireland is an example of why that doesn’t work) but they do want the right to vote on the issue themselves, and decide what are the appropriate controls around it.

To quote from dissenting Judge White:

“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

I personally don’t think it would be a positive step forward to over-turn Roe vs Wade now. I do support pro-choice. However I suspect that if Roe vs Wade had never been passed, then a woman’s right to abortion would be little different today, and it would be far less of a political issue.

I am not alone in this. Liberal Justice Ruth Bader Ginsburg has said that Roe v. Wade terminated a nascent democratic movement to liberalize abortion laws which might have built a more durable consensus in support of abortion rights.