...This essay expands on some of the arguments enunciated by Mississippi and offers additional rationales for the overturning of Roe. The dominant theme herein is not merely “constitutional” in the sense of case law, but “constitutional” in the sense of the basic premises and practices of American government and common public life.
There are at least eight reasons to overturn Roe v. Wade.
First, there is the sharpest dichotomy, both in the facts and in the law, between what the Supreme Court thinks abortion is and what the state governments think. There is no comparable example in American jurisprudence.
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Second, not only does the Supreme Court regularly overturn prior precedents, it has established rules for doing so.
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Third, the Roe precedent has already been overturned—by the Court.
...Casey’s change in the law of abortion is based on the Court’s own admission in Roe that it did not know where the abortion right came from: “The Constitution does not explicitly mention any right of privacy.” Continuing its admission, the Roe Court said that it did not know “whether” “the right of privacy” is “founded” in the 9th or 14th Amendments. Regardless, it is “broad enough” to “encompass” the decision of a woman “whether or not to terminate her pregnancy.” In Casey, the unusual three-person opinion for the Court opinion jointly authored by Republican appointees Kennedy, Sandra Day O’Connor, and David Souter, held that “the controlling word in this case is liberty.”
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Fourth, the basic requirement of standing in court is itself a proof that abortion is not a fit subject for adjudication.
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Fifth, the Court has explicitly stated that Roe is of the same society-changing status in American jurisprudence as Brown v. Board of Education.
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Sixth, In Roe, the Court invented a constitutional right for women only. There is no comparison to any other legal, statutory, or constitutional right.
...In its case now in the Supreme Court, Mississippi rightly concedes that the Constitution has “aspects of privacy.” However, in their texts and proper first inferences, the Constitution and the Bill of Rights are concerned with negative individual rights: “no person.” There is no mention or concept of “private” rights. The rights of “life, liberty, and property” are public rights that cannot be denied by government. Federal civil rights laws have now extended those prohibitions to certain private institutions, for example, employers. But such rights, including the property rights of the 5th and 14th Amendments are public and tangible. They can be seen and touched and publicly experienced. The reserved rights and powers of the 9th and 10th Amendments are public— arising out of common human experience and which can be claimed by anyone. The privileges and immunities” of Article IV and the 14th Amendment by their terms concern “citizens” and have always been regarded as some kind of general national right, to travel freely, for instance, and were rendered close to a dead letter by the famous Slaughterhouse Cases (1873). Litigation of “rights” has been based on the Due Process and Equal Protection Clauses ever since.
In its abortion decisions, the Supreme Court has created the new concept of positive, private, personal, and autonomous rights. What is more, a right for women alone is a class right.
Seventh, the Supreme Court has used Roe to cancel parents’ legal authority over their minor daughters and instituted Constitution-based sexual liberty for teenagers.
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Eighth, as provided by the Constitution, abortion must be returned to the states, that is, to the people....