The Supreme Court has agreed to review the constitutionality of a Mississippi statute banning most abortions after 15 weeks of pregnancy. The court should use this opportunity to liberate America from the long nightmare of nationalized abortion policy. It should overrule Roe v. Wade.
Abortion involves profound social and moral issues. This essay, however, focuses on political, judicial, and constitutional issues.
Politically, Roe has proven to be the most divisive Supreme Court ruling since Dred Scott v. Sandford, the notorious case that helped provoke the Civil War. Since Roe nationalized abortion policy in 1973, abortion has become fodder for special interests that poison civic life. Roe is a major reason judicial confirmation hearings have become arenas for slander and political assassination.
Further, Roe’s nationalization of abortion diverts federal elections and policymakers from issues the Constitution actually assigns to the federal government, such as foreign and budgetary policy.
Judicially, Roe v. Wade was what lawyers call a “rogue decision,” because it violated accepted judicial standards. Courts normally respect precedent, but Roe reversed hundreds of years of Anglo-American law. Courts generally defer to legislatures on policy questions, but Roe effectively voided statutes in all 50 states. Roe converted democratic resolution into Supreme Court diktats.
Roe violated a rule that courts do not adjudicate “political questions”—those that cannot be answered using “judicially discoverable and manageable standards.” Before a court decides an issue, that issue must be one the judge’s legal training equips him to decide.
But Roe and the Supreme Court cases following it force judges to address such questions as:
- Does a state restriction impose an “undue burden” on abortion?
- How does a state legislature balance protection of fetal life with “reproductive freedom?”
- Does the value of fetal life increase with the progression of pregnancy? If so, what restrictions invalid for a woman at 10 weeks become valid at 20 weeks? 30 weeks?
- Is a regulation appropriate for the City of Houston inappropriate in rural Texas?
Issues of that kind are quintessential legislative policy questions. They do not belong in a court of law. Only within the realm of abortion do the courts fail to recognize that fact.