Image Andrew Harnik/AP via Vox.com [retrieved 6-Dec-2021]
Judging by the questions put forth by the members of the Supreme Court, there’s a good chance Roe v. Wade might get struck down or significantly modified. Would that mean the end of legal abortion in the United States? No, it wouldn’t. State laws would take precedence.
When it comes to the Supreme Court and justice, it sometimes appears that an outcome is chosen first, then the Constitution is interpreted to yield the desired outcome.
A recent example that comes to mind is the Affordable Care Act fee (ObamaCare) for not having healthcare coverage – was this fee a constitutional tax or an unconstitutional penalty? The Supreme Court found that it was a tax, despite the Obama Administration’s claim that it was penalty1. A more famous example was the Dred Scott Decision, where the Supreme Court decided that any person descended from Africans was not a citizen of the United States.
In similar fashion, if you’re pro-abortion, you’re for Roe v. Wade, and, if you’re anti-abortion, you’re against it.
However, the rule of law, not the desired outcome, that should guide the court of last resort, whose rulings are not subject to further review.
If you look at the bullet points of this article, Fact-checking the Arguments That Could Overturn Roe v. Wade, you’ll see that none of them have anything to do with constitutionality. So they really have no place in addressing Roe v. Wade. But, in the news, this is all you’ll find.
Here’s an important excerpt from the recent Mississippi case hearing2 –
Justice Kavanaugh — who replaced Justice Anthony Kennedy, a more centrist Justice on abortion questions — signaled that he may well be willing to reverse Roe. While nodding to the court’s precedents, he said that when it comes to abortion there are two interests — the woman’s right to terminate a pregnancy and the interest of fetal life. “The problem is you can’t accommodate both interests. You have to pick,” he said. “Why should this court be the arbiter rather than Congress, state legislatures, state supreme courts and the people being able to resolve this.”
Liberals believe being ‘right’ equals constitutional; Conservatives should not.
1 Obama campaign: It’s a penalty, not a tax
2 Roe v. Wade’s future is in doubt after historic arguments at Supreme Court