Repeal Roe, leave decisions to voters

opinion@dailylobo.com

Roe v. Wade must be overturned. However, the argument I make to you today is not the one that you may be expecting. Rather, I make the case that the Roe v. Wade decision was one of the most serious examples of voter disenfranchisement in recent history. With this decision, lawmaking power was placed in the hands of nine unelected, unaccountable judges, and in doing so, the democratic process which we the people rely on to make decisions on such important issues was bypassed outright.

The U.S. Supreme Court is, quite simply, not equipped to make precedents with such overreaching force and detail that they have the same effect as legislation passed by Congress, if those rulings are not grounded solidly in the Constitution and its amendments. The precedent of judicial review established in Marbury v. Madison makes it clear that the court has its own limited jurisdiction as an appellate court to interpret the Constitution and clarify it as it relates to legal challenges, excepting certain cases as per Article III Section 2 of the Constitution, wherein the court has original jurisdiction, such as settling disputes between states or between the federal government and the states. A specific issue such as abortion, which can clearly not be found in the Constitution, even when reading very narrowly into the law, needs to be handed to the legislatures to be voted on publicly.

The Supreme Court is perfect for things such as dealing with the finer points of interstate commerce or deciding eminent domain cases, both of which pertain directly to clauses in the Constitution or its amendments. But such a broad interpretation of the 14th Amendment was outside of the court’s jurisdiction. The Supreme Court does not legislate public policy; it examines laws for constitutionality.

Now, I want to return to the issue of the grounding of Roe v. Wade’s majority opinion in the 14th Amendment. The complexities of the court’s ruling expand far beyond what could reasonably be found from any sort of reading of the due process clause, including the notoriously vague and controversial substantive due process reading employed by the majority opinion. In fact, the original ruling even specifies a trimester framework for abortion, which is the level of detail that suits a piece of legislation. It could not conceivably be found by even the widest interpretation of a then-105-year-old amendment. Admittedly, the trimester framework was later rejected by the court in favor of the viability definition of when a newborn could survive outside the womb. Even so, the viability definition still contains precise medical language that has no business in a court whose job is to review challenges based in the exact language of the U.S.
Constitution.

Finally, it’s easy to see that one of the main reasons that the abortion debate is so volatile and divisive in this country today is that the issue was decided for us, the voters, and without any of our input. We were not allowed to debate the merits and downfalls of legalizing or outlawing abortion, or to debate settling on a compromise position in between. Due to that Supreme Court precedent nearly 40 years ago, we never had the satisfaction of knowing that if things weren’t decided to our liking, we could work to change things.

There is no accountability involved with the Supreme Court, because its judges are not elected like members of Congress. If we’re displeased with legislation that passed or didn’t pass, we can vote out of office our congressional representatives and try again, or form our own petitions to introduce new legislation. There is no such recourse when it comes to the court’s imposition of the Roe v. Wade majority opinion on the country.

Essentially, the only thing that can be done at this point is to overturn Roe v. Wade. Not in the conventional sense, but to have the court declare its own ruling unconstitutional, on the grounds that the court overstepped its jurisdiction through overly creative interpretation and ended up “legislating from the bench.”

The issue must be given back to the electorate so that we the people can decide on it through voting, as we should have been allowed to do in the first place.