The Right — and Wrong — Way to Overturn ‘Roe v. Wade’

by Napa Institute
Published In December 30, 2021

Originally posted by National Catholic Register: 

COMMENTARY: If the Supreme Court’s six originalist justices are truly originalists, they will end abortion altogether in their ‘Dobbs’ decision, which should have happened in ‘Roe.’

Roe v. Wade is not long for this world. When the Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization on Dec. 1, most of the justices seemed ready to roll back the 1973 decision that forced abortion on the United States and poisoned our national politics.

Yet there’s a right way and a wrong way to overturn Roe, and, right now, the Supreme Court seems likely to make a profound mistake.

It’s not enough simply to return abortion policy to the states, as the justices seem inclined to do. The Constitution requires ending abortion altogether.

When Roe v. Wade was decided in 1973, the Supreme Court didn’t just overrule the 46 states that refused to allow abortion on demand. The Court also rejected the understanding of personhood contained within the Constitution. Roe is based on the 14th Amendment, which says states shall not “deprive any person of life, liberty, or property, without due process of law.” While the Court defined “person” to mean a mother and no one else, the 14th Amendment was unquestionably written to include unborn children.

This fact has been decisively proved by constitutional scholars, who have picked apart the words and writings of the 14th Amendment’s drafters, as well as the legal texts that guided them.

In the 1960s, it was universally understood that unborn children were people and therefore deserve the protection of the law. Not only can their life, liberty and property not be taken away without due process of law, but they are also covered by the 14th Amendment’s promise of “equal protection of the laws.” Abortion profoundly violates both of these constitutional guarantees.

The Supreme Court ignored this reality in Roe, effectively rewriting the 14th Amendment to exclude the unborn. It was a fundamental violation of the Court’s role in America’s constitutional order.

The unelected justices have no authority to change the meaning of the Constitution’s words, which is something only the American people can do, usually through our elected representatives. Instead, justices must understand and enforce the Constitution’s plain and unchanging meaning, anything beyond which opens the door to judicial dictatorship. This is the doctrine of originalism, and, today, six of the nine Supreme Court justices call themselves originalists.

Given the history and text of the 14th Amendment, Roe should have declared that abortion is a violation of unborn children’s constitutional rights. That was, and is, the originalist argument. Not only does the meaning of the 14th Amendment prove it,  but so does the fact that a clear majority of states criminalized abortion when the amendment was passed, on the grounds that it constituted the killing of a person.

Instead, the Supreme Court chose the political and activist route, mandating abortion nationwide. The outcry at the time was massive, and even prominent liberal scholars who supported abortion publicly argued that the Court’s decision was constitutionally indefensible.

Yet ever since, Roe’s opponents have largely avoided the question of whether unborn children are people. Instead of basing their opposition on the 14th Amendment, they’ve rallied around the strategy of returning abortion policy to the states.

The current Supreme Court appears ready to accept that argument. Yet returning abortion policy to the states is as unconstitutional as mandating abortion nationwide. Both approaches involve substituting a justice’s opinion for the Constitution’s plain meaning, which, in this case, is the 14th Amendment’s protection of people, including the unborn. Both approaches allow something the Constitution prohibits. Whether abortion is mandated nationwide or allowed by individual states, it conflicts with America’s governing charter.

If the Supreme Court’s six originalist justices are truly originalists, they will end abortion altogether in their Dobbs decision, which should have happened in Roe. There are those who say that returning abortion to the states is the prudential path and that it’s better to go slow and be incremental. But the Constitution does not give them that choice.

Either the 14th Amendment means what it says, or it’s meaningless. The Supreme Court already tried to render it meaningless nearly 50 years ago in Roe v. Wade, and, ever since, abortion has roiled our country and claimed tens of millions of lives.

The justices have an opportunity — and an obligation — to right that wrong. The Constitution demands it. The unborn deserve it.

Tim Busch is the founder of the Busch Firm in Irvine, California, and founder of the Napa Institute, a Catholic lay organization.

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Thank you, Mr. Busch, for your excellent commentary with insights into the 14th Amendment to the U.S. Constitution. The tragic consequences of misjudgments by the Supreme Court, resulting in more than 62 millions of surgical abortion murders, could also have been prevented by a Human Life Amendment (HLA) to the Constitution. The founder of the March for Life, the late Miss Nellie Gray, insisted on numerous occasions that pro-Life Americans must never compromise until the HLA is part of our national constitution and established as the law of the land throughout these United States and territories. Three quarters of our fifty states could make that HLA happen if our people have the will to insist on it. We must stop relying on a court system which perpetrates injustice and contempt for natural law and for the divine Creator, in whom “we live and move and have our being!”

Very good argument, Tim. The wording of any decision to overturn Roe will obviously be very important.

Perhaps I am hoping for too much, but I believe we can go even go farther than you suggest. There are some things that no human court nor even elected officials have the right to change. These are truths that simply must be “recognized”. Ideally, the wording of such a decision would stand as a world-recognized land mark, something akin to the Declaration of Independence. It should recognize the truth and value of human life by stating that no human institution has the authority to make assumptions regarding personhood and human life that were made in Roe vs. Wade. The court has to put this fundamental truth beyond the reach of tampering with by future courts or legislatures.

(By this way, some one shared with me your article on the Wall Street Journal on Euchartistic Adoration. Bravo!)

Fr. Stephen

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