EXPLAINER: Why did the Supreme Court overturn Roe v. Wade?

NEW YORK (Yaakov M / VINnews) —  After nearly 50 years, Roe v. Wade has been overturned. 

The Supreme Court decided, in a landmark 5-4 decision, that each state can choose whether to allow or prohibit abortions. It is no longer considered a “woman’s right” that is guaranteed by the constitution.

What is the rationale for this bombshell decision? In his majority opinion, Justice Samuel Alito addresses two issues:

1. The legitimacy of the original Roe decision in 1973
2. Whether the concept of “stare decisis”, the strength of precedent, can justify the upholding of the law even if it has no legal basis (which the Court implied in the 1992 decision “Planned Parenthood vs. Casey”)

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Alito rips at the fabric of the initial Roe decision, and pretty much says that the Court fabricated a non-existent freedom to kill an unborn child.

The Court in 1973 set out to prove that destroying a fetus is a fundamental right guaranteed to all women. It used the concept of “right to privacy”, which is not explicitly mentioned anywhere in the constitution. 

In a scathing rebuke, Alito crushes the very foundation of that ruling, rendering it essentially baseless. The assertion that the constitution guarantees abortion is false.

(At one point the draft goes further, hinting that the court only allowed abortion due to political pressure.)

Here is an excerpt:

“The constitution makes no reference to abortion and no such right is implicitly protected by any provision, including the due process clause of the 14th amendment, the one Roe relies upon. That provision has been held to guarantee certain rights not mentioned in the constitution, but only if it is deeply rooted in this nation’s tradition and history.”

The opinion makes it clear multiple times that virtually any right not explicitly mentioned in the constitution is not guaranteed, with rare exceptions. To be protected, the right would need to be deeply rooted in our history. The draft spends many pages proving that abortion is not rooted in the nation’s tradition and history. 

It continues:

“The inescapable conclusion is that abortion is not deeply rooted in this nation’s tradition and history. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest.”

Alito doesn’t stop there. He goes on to say that the court did not really mean to suggest that the right to abortion is protected per se, but rather it is included in a broader established “right to privacy.”

“Instead of pressing the point about being deeply rooted in tradition, the courts ruled it was entrenched in a broader right to privacy and personal dignity and autonomy.” In the Casey decision, Justice Kennedy in 1992 wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Alito points out that the notion that “liberty” would let people define their own concept of existence was never meant to be interpreted literally, because it would give us limitless freedom to hurt ourselves and others. 

Rather, the decision compares abortion to other fundamental rights, such as the right to marry someone of another race, the right to marry while in prison, etc. 

At this point, Alito delivers the death blow:

“However the fundamental difference is that none of those cases address the critical moral question of destroying potential life and destroying an unborn human being. As such they are inapposite.“

In other words, there is no comparison between abortion and any other legal right. 

In order to prove that the constitution protects the right to abort an unborn child, it is crucial to find a comparable right that allows us to destroy an unborn human. And the court failed to do that (because it’s not possible.)

Alito concludes that the Roe decision failed to prove that the right to abort is rooted in the constitution. As such, no other arguments matter. The issue reverts to the states, where all matters go by default when they are not governed by or protected by the constitution. 

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What about precedent?

The opinion then addresses the concept of stare decisis (loosely translated as strength of previous decisions), which carries strong weight. However Alito proves that there are exceptions to the concept, specifically when the court believes that the constitution was misinterpreted. The most famous example is “Brown v. Board of Ed.”, which overturned a previous ruling that allowed “separate but equal.”

Alito addressed an unusual argument that if they do in fact overturn Roe, people may lose faith in the court’s integrity. 

“Overruling Roe would be perceived as [the decision] having been ‘made,“under fire” and as a “surrender to political pressure, and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe.”

‘This analysis starts out on the right foot but ultimately veers off course. The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every [effort] to fully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. “

In other words, the fear of making a mockery of the court does not allow them to contradict the fiber of the constitution. 

Other notable excerpts:

“The court usurped the power to address a question of profound moral and social importance that the constitution unequivocally leaves for the people.  The court short circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.”

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

“Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”

“Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. … The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. … Together, Roe and Casey represent an error that cannot be allowed to stand.”

“Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half-century….This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power.’”

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Yaakov M is a senior columnist for VIN News and former Op-Ed columnist for Newsmax. He has hosted a conservative podcast for 15 years. He studied in Kollel for 14 years, was a Bais Medrash Rebbi for over a decade, and obtained sEmicha from a top Rosh Yeshiva.