Justice Oliver Wendell Holmes was hearing a case when a lawyer demanded justice for his client. Justice Holmes replied, “this is a court of law, young man, not a court of justice”. Similarly, when the supreme court legalized Abortion in 1973, subjective justice replaced objective law. The decision remains an attack on our ever-fading democracy.
In Roe V. Wade, judges acted according to their sense of justice. They “simply fashion(ed) … a new constitutional right” (Dissent Justice White). The court ruled “this right of privacy, … in the Fourteenth Amendment … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy”(Majority Opinion Justice Blackmun).
I challenge you to read the Fourteenth Amendment. Find the word privacy. Find the word abortion. Find any provision broad enough to reasonably include a constitutionally right to an abortion.
The framers would gasp at Roe. Not because it gave women the right to abortion -their moral character varied - but because it dismantled the very foundation of our government: the separation of power. The Framers thought a judge should be a referee, “the mouth that pronounces the words of the Law” (Spirit Of the Laws Montesquieu), not writers of rights or magistrates of social justice.
Here’s the big deal. We the people never voted for abortion.
Seven Supreme Court Justices rejected a society where power stems from people. Instead, they preferred to wield our sovereignty themselves, as unelected members of government. They took our most sacred right - the right to self-determination - when they decided they knew better. No longer could you choose to live in a state where abortion was illegal - they overturned legislatures with anti-abortion laws in at least 21 states. Roe was an attack on Democracy.
What can we do?
Stop dreaming of banning abortion through a constitutional amendment. It’s not going to happen. It's been nearly 30 years since the last amendment was ratified, and of the thousands of constitutional amendments proposed, only 26 made the cut. The late supreme court justice Antonin Scalia said that less than 2% of the population could stop a constitutional amendment (due to the distribution of population among the states: think Montana and Alaska).
Last Tuesday 7 bills limiting abortion were approved in a Texas Senate committee. One such bill, Senate Bill 8, would ban abortion once a heartbeat is detected around 6 weeks into a pregnancy. States are passing similar legislation.
Be the people, and challenge your state legislators to pass anti-abortion bills. It’s time to bring democracy back.
Sources: Cornell Law, U.S. Supreme Court, Social Sciences, Dallas Morning News Openstates will help you contact your representatives, track bills, review upcoming legislation, and see how your local representatives are voting in your state.