Much like infamous U.S. Supreme Court rulings about African Americans’ rights, Roe v. Wade was based on bad constitutional reasoning, Ohio Supreme Court Justice Patrick Fischer told a Republican group earlier this summer.
Cleveland.com reports Fischer, a Republican who is running for re-election, compared Roe to Plessy v. Ferguson and the Dred Scott ruling, decisions that allowed slavery and segregation of blacks in America. Now, all three rulings have been overturned.
In a July 14 talk to the Delaware City Republican Club near Columbus, Fischer said all three bad rulings used “substantive due process” to create rights that are not allowed under the U.S. Constitution, according to the report.
“Ladies and gentlemen, do you know what substantive due process is? It would take me hours to go into it,” he said. “But you know what it’s the basis for? The Dred Scott decision. Not good. It’s the basis for Plessy v. Ferguson. Not good. And it was the basis for Roe v. Wade.”
A Harvard Law School graduate, the justice said substantive due process is controversial because it “gives a blank check to judges that allows them to write policy, which violates the constitutional doctrine of separation of powers,” the report continues.
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“In cases ranging from Dred Scott to the present, some courts have wrongly stretched the due process clause from its original role as an objective and neutral arbiter of fairness to a subjective rubber band that allows judges to substitute their own personal — often partisan — policy preferences for those of the people’s elected representatives,” Fischer continued in an email about his July 14 remarks. “Abraham Lincoln criticized this policy as it was used in the unscrupulous and racist Dred Scott ruling and, in a recent speech, I criticized the doctrine, too.”
He said he has believed Roe was a poor legal ruling for decades, recalling a conversation that he had with his wife 38 years ago when they were dating.
“I told her that if you ever got enough people with guts, that would theoretically — on a theory, on a legal theoretical basis — easily (be) overturned,” Fischer said.
However, Fischer also emphasized that he does not believe other cases that used substantive due process should be thrown out simply because Roe was. Quoting Justice Brett Kavanaugh’s concurring opinion in the Dobbs abortion decision, he said, “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
On June 24, the Supreme Court overturned Roe in the historic Dobbs v. Jackson Women’s Health ruling. Under Roe, more than 63 million unborn babies were aborted in the United States. The 1973 ruling forced states to legalize abortion on demand up to viability and allowed abortions up to birth. Now, because of the Dobbs ruling, states may protect unborn babies by banning abortions again, and more than a dozen have done so.
The Charlotte Lozier Institute estimates more than 110,000 unborn babies are being saved from abortion as a result of the pro-life laws currently in place.
