Roe v Wade and Abortion in the USA

Posted by David Armstrong | May 15, 2022 | 0 Comments

Overruling Roe v. Wade?                 

This is my first foray into a non-practice specific topic.   I don't practice in constitutional law at all, and I rarely look closely at appellate cases, unless they directly impact what I do.   My practice is very practical, and does not involve the same kinds of legal arguments, typically, about what the law should be or whether a law or practice is against the US Constitution. However, the recently leaked draft opinion from Justice Alito purportedly showing a 5-4 majority in the Dobbs case, effectively overruling the Roe v. Wade decision of 1973 has gotten my attention as it has many in this country.  Some thoughts follow. 

First:  It is very troubling to me that this draft opinion was leaked.  The Supreme Court of the United States has rules regarding confidentiality of decisions until they are issued, including deliberations and draft opinions.   I understand from what I have heard and read, that this non-sanctioned disclosure is unprecedented.   Whoever is the person responsible, justice or clerk or staff, male or female, liberal or conservative, he or she should have repercussions in keeping with the action, which act showed a dereliction of duty and total lack of integrity.   It is not something that person should be rewarded for, ever.    

Second:   This is not the end of the argument, even if this is the final announced opinion of the Court.   The legal result is the removal of an enshrinement of the ‘right' to abortion from our federal jurisprudence.   The states, prior to Roe, had many different views on abortion, and the laws, from duly elected individuals, not 9 judges, to put those different views into statutory practice by the states.   My guess, and what is already being borne out, is that the states will do exactly the same as before, determine through their duly elected representatives how they wish to deal with what is on all sides a difficult decision.  California will likely have a different decision than what Texas will.   And further, for those committed to Roe as precedent—every legal scholar of which I am aware, including liberal justices, has consistently stated that Roe was a poorly decided opinion.   In essence, though they may have agreed with the outcome, they did not agree with the reasoning used to arrive at the conclusion.    

Third:   Woe be to all of us if we don't get our emotions and our rhetoric in hand.   This issue remains contentious, and all of us would do well to remember that there are people, real people, with real opinions and real lives who do not agree on this issue (and many others as well).   Many believe abortion is murder and have fought to have Roe overturned for the past nearly 50 years.   Others have been impacted by an unwanted child, or have been driven to despair because they are overcome by the thought of going through a pregnancy and birth that will only add to an already over-stressed life.   Each side and each person involved is deserving of our attention, our ears, our minds, our hearts, and each is deserving of our respect as we work through the aftermath of (what looks like) the ending of the Roe period.      

About the Author

David Armstrong

J.D. University of Houston, 1995


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