Sex and the Singular Constitution: What Remains of Roe v. Wade?

Extract

We are not free to vote abortion up or down because Roe v. Wade in 1973 made “freedom of choice” a basic constitutional right. Last June in the Casey case only two members of the Supreme Court upheld Roe unequivocally. Three others sustained it, but only on grounds of precedent. This suggests that, had they been writing on a clean slate, at least one of them might have joined the four dissenters to form a new majority. Even this anemic victory for Roe is compromised; seven of the nine justices upheld all but one of five challenged state restrictions on abortion (all of which had been held invalid by the District Court).

These anomalies spring from past perversions of the written Constitution, not from anything in the document itself. Here too “a page of history is worth a volume of logic.” Roe v. Wade purports to rest on the Fourteenth Amendment provision that no state shall “deprive any person of life, liberty, or property without due process of law.” This precept derives from the great settlemen at Runnymede in the year 1215. The crux of the matter was that the king (read government) could no longer punish his people at will, but only after guilt had been established via traditional trial procedures. No wonder this procedural right to a fair hearing found its way into the federal Bill of Rights (1791) and into every state constitution.