Was Roe v. Wade correctly decided? No.
Debate Rounds (4)
Was Roe v. Wade correctly decided? No. There is no right to abortion in the Constitution for two simple reasons: (1) the Constitution says nothing about it and (2) when the Fourteenth Amendment was adopted (1868; please note that the Fourteenth Amendment was the basis for Roe's holding) almost every single state had a law prohibiting abortions. Given this historical fact, it is plainly absurd that the Constitution grants a right to an activity that was entirely prohibited when the relevant portion of the Constitution was adopted. Clearly the Fourteenth Amendment's authors did not believe that they were granting a right to abortion, so neither do I.
The first round is just to accept the debate. My only request is that you know what you're talking about. You should know a few things about the case you are defending, like what "substantive due process" is, or the relevant precedents, like Griswold v. Connecticut.
The logic of Roe was that the right to privacy (see Griswold) protected a woman's decision whether or not to terminate her pregnancy. This reasoning, which I will address presently, fails to convince; but there are additional reasons why the Court's holding was utterly absurd.
1. The Constitution does not list a right to abortion. Therefore, like most things, the practice of abortion, and the restrictions on it, are to be decided by democratic choice (i.e. citizens convincing one another that their position is correct, and then voting). Of course some states could legalize abortion; my view is simply that the Constitution does not require it to be legal.
The standard response is that the Ninth Amendment contains un-enumerated rights which are judicially enforceable. That is false. We have had a contrary understanding for almost two hundred years. Keep in mind that the Bill of Rights only applied to Congress when it was ratified. It was the Fourteenth Amendment that "incorporated" these protections against the states. The only reason why the Framers adopted the Ninth Amendment was because they were concerned that by enumerating certain rights, it would lead people to think that Congress could do anything so long as it didn't violate the first eight amendments, thus "enlarging" its power beyond those given in Article I. The Ninth Amendment was the solution. It specified that Congress could only do things pursuant to its enumerated powers even if they were not violating a specified right. It did not say that the judiciary can impose unheard-of new restrictions against the states by "discovering" new rights. That would give extraordinary power to the judiciary to overrule democratically enacted legislation by looking into their magical crystal ball (the Ninth Amendment) and announcing some new right that had never before been regarded as Constitutionally protected. The Framers did not replace tyranny by a monarch with tyranny by the Supreme Court.
And even if the Ninth Amendment creates a well of judicially enforceable rights, why must it include a right to abortion? There is no evidence that the Framers of the Constitution, or any of the subsequent amendments, believed that there was such a right. The only way it can be created is by permitting the Justices of the Supreme Court to impose upon the people their own political preferences. Adherents to Roe must not only regard that prospect with equanimity, but solicit it.
Because the Ninth Amendment applied only to Congress, Justice Blackmun (the Court opinion's author) based his opinion on "the Fourteenth Amendment's concept of personal liberty" stemming from the Due Process Clause via a doctrine called "Substantive Due Process" that is very idiotic. Sadly, I don't have enough characters to address it here.
2. When does life begin? The logic of Roe (discussed above) could be entirely correct, yet the Court would still have been wrong to create a right to abortion. The decision to abort a pregnancy is only "private" if you posit an answer to the clearly non-justiciable question of when life begins. If the unborn child is alive, abortion is no longer private at all. It would be no less private than murder. When life begins is not a question that the Supreme Court can answer because there is nothing in the Constitution that provides one. What constitutes life, and when it starts, is a value judgment. Value judgments should be voted on, not dictated by nine unaccountable lawyers. Please note that I am not saying that life begins at conception. My argument is that, if a majority of its citizens believe so, a state may decide that life begins at conception and prohibit abortion. It is for the people to decide.
4. When the Fourteenth Amendment was adopted, abortion was illegal in almost every state. As I explained above, the Court's decision was based on this amendment. An extraordinary obstacle for the proposition that it includes a right to abortion is that, when it was ratified, abortion was illegal (or restricted) almost everywhere, and remained so for a century. Nobody ever thought that adopting the Fourteenth Amendment changed this legal norm. As Justice Rehnquist put it in his dissent,
"[t]o reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today....There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted....the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to [abortion]."
When the people's representatives adopted the Fourteenth Amendment, they did not create a right to abortion. They created an amendment that allowed prohibitions on abortion. In Roe, the Court, in effect, invented a new amendment that no one voted for. The only way to arrive at the Court's result is to substitute for the Constitution's text and history the personal biases of superannuated judges whose decisions are virtually impossible to check.
Everything I have written until now are independent reasons to reject Roe v. Wade. Now I turn to the argument on which the Court rested its holding: that the "right to privacy" protects a woman's decision to have an abortion. One scarring flaw is the issue of when life begins, discussed already. The Court purported to settle this controversy by noting that the Constitution grants citizenship to persons born on U.S. soil. The Court, mind-bogglingly, thought this was sufficient to answer a question that I have already shown is non-justiciable. Even beyond that, however, the Court's analysis is wrong. The fact that one must be born on U.S. soil to be a citizen does not mean that one cannot be a person (i.e. have a life) before then. Foreigners in this country are not citizens, yet it is still illegal to kill them. Likewise, a state can prohibit abortion on the grounds that it is killing a "person," even if that person is not yet a citizen. Thus, the Court's opinion does not prove that the unborn child is not alive, a condition necessary to hold that abortion is "private," and thus included under the right to privacy decreed in Griswold. Even though it was wrongly decided, I am willing to assume, for the sake of argument, that Griswold was correct. The Court's application of this precedent was misguided because doing so assumed that the decision to abort was "private," an assumption that cannot be made given the lack of support in the Constitution, for the proposition that life begins at birth, and not before. If life begins at conception, abortion is infanticide and thus--obviously--not private. No matter your personal views on this matter, one must conclude that the question of when life begins is something for our society to decide via the democratic process.
In Roe, the Court converted a milestone of judicial overreaching (Griswold v. Connecticut) into the very Cheop's Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing this invented right, that cannot be found in the Constitution and contravenes the express views of the Constitution's authors, upon the people, the Court destroyed its own legitimacy beyond all doubt. Until Roe is overruled, it will continue to blight our Supreme Court's otherwise largely correct jurisprudence. The Constitution does not grant a right to abortion. Let us stop pretending that it does.
Your interpretation of the ninth amendment, and the role of the Federal Government, practically make the Supreme Court obsolete. For example, and forgive me if I"m interpreting your argument wrong, a state could ban voting (a right not listed in the constitution) and the Supreme Court wouldn"t be able to intervene. This is ridiculous for obvious reasons.
Your next point was that there is no evidence that the Framers of the Constitution believed there was such a right. This is true. And yet it took us thirteen amendments to ban slavery, an incredibly long time. Now of course there is evidence that many of our Founding Fathers did not agree with slavery, but no action was taken. Your point of view pretty much means that our society cannot progress morally, cannot examine new moral questions that come up. Our federal government, does and, should have room for expansion of the rights it gives its people.
Your next point is one of the more common discussions that come up during the topic of abortion. When life begins. Instead of taking the standard route of naming when it does, you say it should be left up to the states to decide, and the people within them. We do not live in a direct democracy, and civil liberties should not be voted on. Not to mention that following your line of logic, as well as banning voting (see above), voters in a state could decide that life doesn"t start until someone is 18, and therefore parents should have a right to execute them until that age. Once again, this is ridiculous for obvious reasons.
On your fourth point, something being legal in almost all states does not mean that we should simply turn the other cheek. Once again, voting rights and slavery. I also have to say, that for someone who seems to have a lot of respect for the Constitution and the way our country was founded, I"m surprised you have such disdain for the Supreme Court.
Now here"s something we can agree on; I also think that the "born on U.S soil" bit is completely ridiculous, and your point was very good. However, you end that paragraph about saying that our society should be the ones to decide on abortion. I mentioned above my opinions on this, but let me reiterate and expand. We do not, thankfully, live in a direct democracy. We have representatives on a state, and federal level. The question of when life begins is not something we should leave up to the masses.
Roe v. Wade was not a blight on our Supreme Court, but rather a shining moment in the progression of personal freedom, privacy and about our Governmental process.
I"m eagerly awaiting your reply.
You interpret my first argument correctly but your description of its impact is wrong. In several places throughout your argument, you write that my position would leave rights unprotected. The first in your parade of horribles is the right to vote. In your hypothetical, my position would prevent courts from keeping states from eliminating the right to vote because it is "not listed in the constitution." In fact, it is. The 15th Amendment reads "The right . . . to vote shall not be denied or abridged . . ." (emphasis added). Article IV also stipulates that the states have a republican form of government, a prerequisite to which is the right to vote. So if a state were to take away this right, it would be violating the text of the Constitution and the Supreme Court would rightly intervene.
Next, you say that I would prevent our society from "progress[ing] morally." Nothing could be more wrong. Our society is perfectly free to evolve or change. In my argument, I stated numerous times that states could, if their citizens wished, legalize abortion. The only question is whether "progress" can be imposed on the people by an undemocratic branch of government instituting their political preferences with no accountability. My argument that Ninth Amendment rights be grounded in history or the intent of the Framers is simply to prevent the Justices from creating rights based on their political views. That would be tyranny by the judiciary. So to counterbalance your criticism of our ancestors, let me say a word in their praise: They left us free to change. They did not bind us to their mistakes. Thus, if our society sees their decisions as errors, it is free to change them through the democratic process.
In your next alarming hypothetical, you speculate that a state could say that life begins at 18. Of course, if we let the Court decide when life begins, could it not say the same thing? These possibilities are equally unlikely. Your criticism of having the state decide this issue would apply equally to the Court. Indeed, nowhere in your argument do you justify, or even say, that the Court is better equipped to deal with this issue And if a state were to do such a thing, it would be violating the Constitution. The 14th Amendment states that citizenship begins at birth, so after that, one cannot violate their right to life without due process. However, just because someone is not a citizen does not mean they are not a person. Foreigners, for example, are not citizens but it is still illegal to kill them because they are still persons. The only relevant question, then, is whether "personhood" begins before birth (i.e. when does life begin). While you give a reason why a state should not have the power to answer this question, you don't actually argue that the Supreme Court should have that power. Clearly it should not. The Constitution does not say anything about when life begins, so it is something that our society can decide on its own without interference from the Court.
On my fourth argument, you don't have much of a response. It is certainly true that many states allowed slavery etc., but that practice was definitively ended by the 13th Amendment. The argument I was making was that clearly the authors of the 14th Amendment were not granting a right to abortion because, if they were, why did abortion laws stay in place for a century? Clearly no one at the time, including its authors, thought that the 14th Amendment conferred such a right. When the American people adopted this Amendment, they adopted one that permitted restrictions on abortion. Only by morphing the words to fit their personal agenda, in complete contravention of the authors' explicit views on the matter, could the Justices justify their ruling. They essentially invented a new amendment that nobody voted for. This twisted method of judging represents a serious assault on democracy.
Lastly, you say that civil liberties should not be voted on. Aside from the obvious criticism: that the whole debate is whether abortion is a civil liberty in the first place, or murder, your argument has a fatal flaw: We voted on the Constitution. When we enshrine rights in it, we are voting to do so. Civil liberties are always voted on. And while you are correct in an abstract sense, that, theoretically, rights are supposed above the democratic fray, it is simply a reality that, in a republic, rights are created by voting. They don't magically appear in the Constitution, our elected representatives voted to put them there.
There you have it. There is not much of a substantive criticism of most of what I argued in Round 2, and I have addressed the argument's that were made. One last point: I do not have "disdain" for the Supreme Court when it is doing its job correctly. In fact, I only started this debate because I have such interest in the Court. However, it is foolish not to admit that some cases were wrongly decided, and that the Court should correct itself. Roe v. Wade is an example of such a case.
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