Roe v. Wade Was Raw Judicial Activism, Supreme Court Should Overturn It

Opinion   |   Bill Connor   |   Dec 29, 2021   |   11:29AM   |   Washington, DC

As most Americans are aware, the U.S. Supreme Court heard oral arguments in the Dobbs vs. Jackson Women’s Health Organization abortion case. The court will decide the constitutionality of a 2018 Mississippi state law banning abortion operations after the first 15 weeks of pregnancy.

Based on questions by justices, many legal experts believe the court will hold the Mississippi law constitutional, and this could upend the 1973 Roe vs. Wade decision, and the later 1992 “Casey” decision that made “viability” of the unborn, then at 24 weeks, as the key time. As a result, the left has engaged in fear mongering.

Emblematic of the false hyperbole, Democratic U.S. Sen. Jeanne Shaheen recently exclaimed: “If you want to see a revolution, go ahead, outlaw Roe v. Wade.” It’s time for truth about Roe vs. Wade and what overturning it would really mean for America.

First, the life of the woman at the center of Roe vs. Wade is instructive. Norma Jean McCorvey, known as “Jane Roe,” was the plaintiff in Roe vs. Wade. McCorvey sought an abortion in Texas in 1969 but couldn’t due to a Texas abortion ban. Two activist pro-abortion lawyers pressured McCorvey (by McCorvey’s account) into bringing the case to the Supreme Court. The Supreme Court held that an alleged general right to privacy was wide-ranging enough to encompass a woman’s right to choose an abortion. McCorvey’s baby was born during litigation and then put up for adoption.

The court in Roe vs. Wade displayed activism in usurping lawmaking authority and did not follow its constitutional duty of deciding by the original meaning of the Constitution.

SUPPORT LIFENEWS! If you like this pro-life article, please help with a donation!

As the late Justice Antonin Scalia wrote of the proper means of court interpretation: “It is perfectly clear that the original intent was that the Constitution would be interpreted by its original meaning.” Scalia also noted Supreme Court activism leading to Roe: “Originalism was the constitutional orthodoxy in the United States until … the post-World War II Warren Court.”

The Roe court did not follow the usual and established rules of construction to interpret the Constitution. The court acknowledged that the Bill of Rights does not include the general and absolute right to privacy encompassing abortion, but claimed “penumbras and emanations” from the Bill of Rights allowed the court to infer such a right.

Contrast the 1973 court to the more orthodox Supreme Court of the early 20th century.

The political push for women’s suffrage gained traction in the early 20th century. The Supreme Court could have used “penumbras and emanations” to find women’s right to vote in the 14th Amendment. Instead, it determined that the original meaning of the 14th Amendment’s equal protection clause did not cover this issue.

The political process rightly determined this issue, and lawmakers passed the 19th Amendment making women’s suffrage a constitutional right. That right has remained uncontroversial and accepted by all, unlike abortion. The Roe decision has arguably caused the most divisiveness in U.S. history.

Unlike the hyperbole of progressives like Sen. Shaheen, if Roe is overturned abortion is not “outlawed”. States like California and New York will continue to allow virtually unrestricted abortion. Conservative states will likely place restrictions on abortion. Of course, travel between states is wide open, as is the freedom to move to states of choosing.

McCorvey’s later life illuminates the moral bankruptcy of the pro-abortion movement with respects to Roe vs. Wade and the surrounding false rhetoric.

Within a decade of Roe vs. Wade, McCorvey admitted that she only wanted an abortion because she had been depressed. She admitted she had been used as a “pawn” of abortion activists. McCorvey accepted Jesus Christ in 1994 and became a pro-life activist. In 1995, she published “I am Roe” and began work with the pro-life group Operation Rescue.

In 2005, McCorvey petitioned the Supreme Court to overturn Roe vs. Wade. She attempted to claim standing as a litigant in the 1973 decision but was denied. McCorvey spent her final years begging for the end of abortion until her death in 2017 (Note: In 2020, FX published a video by progressive attorney Gloria Allred of McCorvey in poor condition before she died. In the video, McCorvey appeared to recant her pro-life stance. However, according to former Planned Parenthood leader turned pro-lifer Abby Johnson, McCorvey called her days before dying expressing remorse over abortion. According to Johnson: “I don’t have a problem believing that in the last year of her life that she tried to convince herself abortion was OK. But I know at the end of her life, she did not believe that.”)

The end of Roe vs. Wade may come with the Supreme Court’s opinion in Dobbs, and if so the court will have helped reverse the activism from 1973. The American people will again have the final word over this most critical of issues. Importantly, McCorvey will be smiling from heaven for ending something she never intended and spent a life trying to correct.

LifeNews Note: Bill Connor, a retired Army Infantry colonel, author and Orangeburg attorney, has deployed multiple times to the Middle East. Connor was the senior U.S. military adviser to Afghan forces in Helmand Province, where he received the Bronze Star. A Citadel graduate with a JD from USC, he is also a Distinguished Graduate of the U.S. Army War College, earning his master of strategic studies. He is the author of the book “Articles from War.”