Now that there’s a Supreme Court nominee, a federal appellate judge named John G. Roberts Jr., there are fears that if he is confirmed, the 1973 Roe vs. Wade case that legalized abortion will be overturned.
Those fears are not groundless. In 1991, when Roberts was deputy solicitor general in the Justice Department of Bush the Elder, he argued that Roe vs. Wade “was wrongfully decided and should be overturned.”
In essence, the Supreme Court held in 1973 that there was a fundamental “right to privacy” in this matter, and that state laws which infringed on this right were unconstitutional. To some degree, this was based on the court’s 1965 ruling in Griswold vs. Connecticut, which invalidated a state law that banned birth control: “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined … or imprisoned.”
It has been argued that there’s no “right to privacy” specified in the Bill of Rights, and thus courts should ignore it, but by similar logic, the U.S. Air Force is a violation of the federal constitution. In Article I, Section 8, Congress is given power “To raise and support Armies” and “To provide and maintain a Navy,” but there is no constitutional authority “To establish and maintain an Air Force.”
We just assume that the U.S. Air Force is a logical extension of the other military authority specifically granted to Congress.
In Griswold, Justice William O. Douglas delivered the majority opinion. Even if there is no explicit right to privacy in the Bill of Rights, he wrote, there are provisions for privacy in the Bill of Rights, like the Third Amendment’s prohibition against quartering soldiers in private homes in peacetime, and the Fourth Amendment’s explicit affirmation of the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Thus state intrusion into an intimate and personal matter was a violation of personal rights. Justice Potter Stewart dissented. He said the Connecticut law was stupid and unenforceable, but “we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”
So how far would the court roll back the right of privacy if Roe vs. Wade were overturned? And how much support would it get from all those right-thinkers who constantly tell us they’re for smaller government and more individual responsibility? It seems logical that if government claims power over abortion, then it could just as reasonably require abortions as forbid them.
The immediate effect of overturning Roe vs. Wade would be to return the issue to the states, where it had been before 1973.
On April 25, 1967, Colorado became the first state to liberalize its abortion laws; the bill was written and pushed by Dick Lamm, then a Democratic state representative, it passed a Republican legislator and was signed by a Republican governor, John Love. A similar bill was signed two months later in California by Republican Gov. Ronald Reagan.
It didn’t hurt the political careers of Lamm, Love or Reagan. Since the new state laws allowed abortions to protect the mother’s “mental health,” a term subject to much latitude in interpretation, they essentially legalized abortion for anyone who could afford to get a supportive medical opinion.
But abortion wasn’t a major political issue then. It is now, although it’s a free ride for liberal and conservative politicians as long as Roe vs. Wade is in force. They can say whatever they want, knowing that it doesn’t matter.
If Roe vs. Wade is overturned, then every race for every seat in the state legislature could turn into a referendum on abortion. Education, highways, prisons, water, taxes – all these could be ignored once the activists get revved up about the “sanctity of life.”
Abortion will be legal in some states, and a felony in others. Zealots will push for a constitutional amendment, along with federal laws banning travel across state lines for an abortion. Enforcement will apply to poor women riding the bus to another state, not rich ones in private jets who can go to Canada or Switzerland or some other civilized country.
It will be a mess that further clogs the court system and burdens law enforcement. Roe vs. Wade may have been a faulty decision by some legal reasoning, but at least it put the moral responsibility where it belongs – on the individual.
Ed Quillen of Salida is a former newspaper editor whose column appears Tuesday and Sunday.
