A Weak Foundation: Roe v. Wade Criticism from Both Sides of the Supreme Court & the Future of Abortion Rights

As the anti-abortion movement escalates with the signing of strict anti-abortion laws such as those of Alabama and Georgia, there is understandably major concern about a potential overturn of Roe v. Wade (1973). The arguments being made in favor of these extreme measures reflect the clear hypocrisy of the concept of being “pro-life” and contradict both the central conservative principle of individual freedom and the fundamental American ideal of liberty. Nonetheless, despite the logic behind pro-choice arguments and their alignment with the constitutional principles that have been used to defend women’s rights and, more broadly, the right to choose for all Americans in many other contexts, Roe v. Wade, with the particular details of its conclusion, unfortunately may not provide a solid enough foundation for the preservation of a woman’s right to choose to have an abortion.

In the recent case Timbs v. Indiana (2019), Justice Clarence Thomas wrote in his concurring opinion that Roe v. Wade (1973) and Dred Scott v. Sandford (1857), in which the Supreme Court held that slaves were property and African Americans could not be citizens based on the Fifth Amendment, were some of the Supreme Court’s “most notoriously incorrect decisions.” Yet, these two cases had opposite effects: Roe v. Wade expanded personal freedom for a group facing discrimination while Dred Scott v. Sandford clearly restricted freedom for an oppressed group. Thomas’s disdain for the Roe v. Wade decision in Timbs v. Indiana (a case unrelated to abortion) displays a willingness from the Supreme Court to abandon precedents and overturn landmark Supreme Court decisions while also providing just one articulation of anti-Roe v. Wade sentiment from a place of power.

Nevertheless, abortion rights (and intrinsically, women’s rights overall) are not just in danger because of the conservative anti-abortion attitude that underlies opposition to Roe v. Wade. Rather, abortion rights are seriously threatened by the weakness of the Roe v. Wade conclusion itself— recognized farther left on the political spectrum as well.

“Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action,” writes Ruth Bader Ginsburg in a 1985 essay (Source 5). Ginsburg clarifies the issue in Roe v. Wade: “The conflict … is not simply one between a fetus' interests and a woman's interests, narrowly conceived, nor is the overriding issue state versus private control of a woman's body for a span of nine months. Also in the balance is a woman's autonomous charge of her full life's course-as Professor Karst put it, her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen” (Source 5). Ginsburg is critical of Roe v. Wade as the specific case to fundamentally defend abortion rights, though, because of the failure of its conclusion to sufficiently emphasize abortion rights based on a woman’s own right to choose. Instead, Ginsburg states her belief that “the Court's Roe position is weakened … by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective” (Source 5).

Ginsburg explains that Roe v. Wade is diminished because though it defends an important freedom for women, the security of that freedom depends on evidence that is less than ideal. Hence, Roe v. Wade may be overturned and the federal protection of abortion rights revoked because of the argument that the evidence to support the case’s conclusion is insufficient— even though the rights involved may be worthy of that protection based on different evidence. Further, Clarence Thomas’s opinion in Timbs v. Indiana would stress, decades later, the very real potential for this kind of reversal of a landmark Supreme Court case, justified not necessarily by the freedom guaranteed by the case but because of the evidence behind it. Roe v. Wade defended a woman’s right to choose to have an abortion, but its medically-based specifications and emphasis on the right to privacy (Griswold v. Connecticut) may make the case unsustainable as a respected precedent, especially with the political climate of the current Supreme Court. Roe v. Wade left space for continued and intensified controversy regarding the constitutional evidence for its conclusion.

The arrogation of a woman’s right to choose to have an abortion is a blatant attack on women’s rights, an effort to relegate women to second-class status by deeming them powerless over choices about their own bodies and lives, and an attack on freedom as a whole. For the vital right to make choices for oneself—of all people—to no longer be manifested in an aspect of American life, simply because of the choice that some people would make, seems a sheer abuse of power by those responsible for protecting liberty. Nevertheless, abortion rights are not simply in grave danger because of the “pro-life” argument but because all it may take for the reversal of the federal protection of a woman’s right to choose is the undermining of the Roe v. Wade decision— a decision that defends the right to abortion but may not be centered enough on the protection of the right to choose.

Sources

1. https://fivethirtyeight.com/features/we-categorized-hundreds-of-abortion-restrictions-heres-why-the-anti-abortion-movement-is-escalating/

2. https://www.oyez.org/cases/1850-1900/60us393

3. https://www.nytimes.com/2019/05/15/us/politics/supreme-court-abortion.html

4. https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

5. https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2961&context=nclr

6. https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit

7. https://www.oyez.org/cases/1971/70-18

8. https://www.thedailybeast.com/clarence-thomas-shows-how-supreme-court-would-overturn-roe-v-wade