Roe v. Wade and the Leaked Opinion

Last month, a draft opinion that would overturn Roe v. Wade, the landmark 1973 decision that legalized abortion nationwide, leaked. With the conservative majority currently holding power on the court, it appears they have the votes and Roe will indeed soon be overturned.

My feelings about this are complicated. As a woman. As a mother. As a lawyer. As a Catholic. It is not an easy subject.

I consider myself anti-abortion, but pro-choice. I have been taught, and continue to believe, that life starts at conception. However, I do not think it is my right to impose this view on someone else. While, for that reason, I would never seek an abortion, I also firmly believe that the only person who should be able to make that decision is the woman who has to bear the child. The decision is nobody else’s business. In simple terms, what I believe is not something that should be forced on anyone else.

So, while I personally do not believe in abortion, I am dismayed that, should this decision come to pass, that choice will be taken away from women in a great number of states. I am also very concerned about the current Supreme Court’s lack of respect for stare decisis, which the legal principle that prior decisions of the court should generally not be disturbed simply because the ideological composition of the court has changed.

Questions about the legitimacy of the Supreme Court have been growing over the last few decades as the institution appears to become more and more politically partisan. The Supreme Court’s legitimacy, if any, is derived from the public’s acceptance that the highest court is a neutral arbiter of the law rather than a body that acts based on personal political or religious beliefs. Overruling 50 year old precedent that polls repeatedly show is supported by a majority of Americans is not the way to maintain that legitimacy.

That said, the reasoning behind Roe was recognized from the outset, even by its supporters, as shaky and susceptible to criticism and attack as the draft opinion does a very good job of laying out. In fact, as Justice Alito points out in the decision, even liberal hero Justice Ruth Bader Ginsburg felt the rationale behind Roe was flawed. Justice Blackmun’s opinion in Roe was grounded in the idea that state bans on abortion violated a woman’s constitutional right to privacy, a right that does not have a specific textual basis in the Constitution. Ginsburg believed, and I agree that the better tact would have been to base the right to abortion access on women’s right to equality provided for in the 14th Amendment, the idea being that women being deprived of the right to make choices with respect to their own bodies is a violation of that right to equal protection.

Time will tell how all of this plays out. But once again it feels very much as if a better organized and more ruthless minority is imposing its will on the majority. The Supreme Court should not be a co-conspirator in such. My hope is that this decision may finally bring desperately overdue reform to the institution of the court.