Should Roe V. Wade Overturned?

[Alcibiades]

No; in fact I will go against what I believe is the general forum consensus, even among a lot of pro-choicers, by saying that I think that Roe was a perfectly legally sound decision.


nor shall any State deprive any person of life, liberty, or property, without due process of law

I do understand why many people find it very difficult to see how a constitutional right to abortion follows from this. However, I think it is necessary to think a bit deeper about what it is really saying. This, at least in my mind, is a wonderful little clause imbued with the spirit of what might be called liberal neutrality; essentially what it is saying is that the burden of proof must be on the state to justify restrictions on personal liberty. IIRC, Blackmun has received some flak for mentioning in support of his opinion that public opinion in the United States had reached no consensus as to the (im)morality of abortion, but I think that he was in fact absolutely right to do so - the inherently subjective question of at what point a foetus constitutes a life proves that the aforementioned burden of proof is not met as far as abortion bans are concerned. The Court called this a ‘right to privacy’, but in my opinion this somewhat misses the point, and might better have been labelled a ‘right to personal autonomy’. Nevertheless, its interpretation of the Due Process Clause was broadly correct.


nor deny to any person within its jurisdiction the equal protection of the laws

The Court did not invoke the Equal Protection Clause, and it is probably somewhat weaker in supporting the case than the Due Process Clause, but they could reasonably have done so. The inability to control whether or not she wants to have a child evidently has a wide variety of discriminatory practical impacts on women, and would be a major cause of gender inequality.