Is Roe really “settled law”?
The United States Supreme Court can be likened to Christianity’s early church fathers who were necessarily tasked with interpreting Scripture for the purpose of establishing orthodox doctrine. For instance, the New Testament clearly taught that Jesus of Nazareth was both human and divine, but how was that to be understood? Years of reflection, discussion, and conciliar debates finally resulted in an authoritative proclamation on what it meant that Jesus was/is both God and man.
In much the same way, the Supreme Court justices reflect, discuss, and hold “councils” designed to interpret the US Constitution as it applies to particular issues and situations, after which they pronounce an authoritative decision regarding the challenge before them. It is a well-designed and generally well-functioning system, but it’s not perfect. For various reasons such as the inherent limits in discerning the unexpressed intent of particular constitutional provisions crafted by men who are long gone, and the unlikelihood of imperfect men and women of various backgrounds and worldviews seeing an issue and reading a provision in the same way, our judicial branch regularly revisits and revamps many an “authoritative” decision.
So it is with the landmark 1973 abortion decision Roe v. Wade which effectually legalized abortion on demand. Philosopher Francis J. Beckwith, in Chapter 2 of his book Politically Correct Death: Answering Arguments for Abortion Rights (1) which I am reviewing in a series of posts, explains how subsequent Supreme Court abortion decisions chipped away at Roe, effectively “gutting” it, even though it remains standing, albeit like a “western movie set.” He cites two cases in particular that have modified Roe.
Webster v. Reproductive Health Services (1989)
This decision upheld a Missouri statute prohibiting public employees and institutions from performing abortions except in cases to save the life of the mother, and requiring testing of all women wanting abortions if they were thought to be at least 20 weeks along in their pregnancy, among other things. Beckwith cites Chief Justice William Rehnquist’s written opinion for the majority rejecting Roe’s trimester framework and determination that states have an interest in protecting the unborn only at viability.
…the key elements of the Roe framework – trimesters and viability – are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle…In the second place, we do not see why the State’s interest in protecting potential human life should come into existence at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability.
Planned Parenthood v. Casey (1992)
In ruling on five provisions of the Pennsylvania Abortion Control Act, the Court decided state restrictions on abortion must meet an effectively lower “undue burden” standard instead of the “strict scrutiny” one imposed by the Roe decision. Strict scrutiny, according to Beckwith, meant that “possible restrictions must be essential to meeting a compelling public need in order to be valid.” In establishing that they instead must not impose an “undue burden” on a woman seeking an abortion, the Casey Court invalidated Roe’s affirmation of abortion as a fundamental constitutional right. They did, however, uphold the view expressed throughout the Roe decision that the unborn are merely “potential,” not full persons, until they exit the birth canal.
Beckwith also touches on the legality of sex-selection abortions in this chapter, demonstrating that they are allowable under Roe and are done for women who request them, and almost entirely on unborn girls.
Forty-six years after Roe v. Wade the legalities of abortion continue to be challenged and changed. For something that many insist is “settled law,” it appears to me that it’s primarily the Court’s deference to precedence that has kept Roe “settled,” though considerably weakened by later abortion decisions. And just as a damaged structure may appear settled on its foundation and can withstand the ordinary assaults of wind and rain but will collapse if the ground beneath it gives way, I don’t believe Roe will survive the earthquake that is rumbling even now as pro-life citizens and legislators are becoming more active.
Of course, I recognize that even if Roe is overturned abortion will still be legal in the states that have made it so. The only thing that will end the legal killing of the unborn is for the Court to recognize that humans are persons from the moment they are created…not potentially so but actually so…and that therefore the Fourteenth Amendment protects their lives, instead of being misconstrued as a constitutional basis to destroy them. In Chapter 3 of Francis Beckwith’s book he begins looking at the evidence for the full humanity and personhood of the unborn, and that’s what we’ll turn to next time.
1. Francis J. Beckwith, Politically Correct Death: Answering Arguments for Abortion Rights (Grand Rapids: Baker Books, 1993)