by David K.
February 26, 2021
On the 48th anniversary of Roe v. Wade, President Biden reaffirmed his desire to codify Roe into federal law, reflecting the Democratic Party’s fear that Roe is nearing its end.
While the Supreme Court has yet to add an abortion case to its docket, the number of pending cases challenging key provisions in Roe and Planned Parenthood v. Casey (which affirmed the central holding of Roe, that a woman has a constitutional right to abortion) continues to grow. In light of Justice Amy Coney Barrett’s nomination, legal, and legislative trends support a future reversal. This is due, in part, to Roe’s inherent legal inconsistencies. Not only did Justice Blackmun contradict himself in his majority opinion in Roe, new bodies of criminal law are incompatible with Roe’s foundational assumptions.
Former Justice Ruth Bader Ginsburg herself criticized Roe’s rationale, stating that it “went beyond the extreme ruling of the statute before the court.” Abortion advocates similarly recognize Roe’s critical flaws, mainly a lack of reasonable inference from a constitutionally enumerated right.
The contradiction within the Court’s rational is another reason to reevaluate its holding. First, it rejected the existence of an absolute right to privacy, then nine pages later made that right absolute in the first trimester of pregnancy. Two interests were at issue, the mother’s privacy interest and the state’s interest in protecting unborn persons. The Court should have ended the analysis there recognizing the compelling interest in protecting unborn persons.
The inconsistency of legal personhood is highlighted in criminal feticide laws. This is yet another indicator of its inherent incongruity. Unborn children are recognized as humans in other situations outside of abortion. For example, in 1984, the Massachusetts Supreme Court recognized unborn persons in vehicular homicide cases. Since then, 38 states have passed laws recognizing unborn victim status. Federal lawmakers followed suit, passing the 2004 Unborn Victims of Violence Act. Legal scholars recognize the dilemma this legal trend poses. How can courts grant the unborn personhood in criminal law while refusing it in the context of legal abortions?
Lawsuits in response to the 2020 presidential election, civil unrest, and the Covid-19 pandemic have captured the Supreme Court’s attention for the moment, but the abortion issue will soon have its day in court. If the Court with three new justices corrects the legal inconsistencies in its previous holding, the abortion issue will likely return to the 50 state legislatures, allowing states like Alabama to reinstitute significant protections for the unborn. So long as Congress refrains from packing the Court, it will likely not be a matter of if Roe will be overturned, but when.
David K. is an intern at FRC Action.