Today marks the anniversary of the Supreme Court’s tragic 1973 decision in Roe v. Wade, which struck down the abortion laws in all 50 states, and legalized abortion on demand throughout all nine months of pregnancy, for any reason, or for no reason. The cost is almost unimaginable — almost 60 million unborn lives have been lost, at least as many women and men have been scarred by the experience, and our culture has slid, seemingly inexorably, into a Culture of Death that degrades the value of human life
We remember this tragedy today in many ways, including the March for Life and by observing a special Day of Prayer for the Legal Protection of Unborn Children at Mass. It is also a time to reflect on the effect that Roe and its progeny have had on the rule of law, and the damage that has been done to our Constitution, our courts, and our democracy
Even when it was handed down, Roe was immediately recognized as a lawless abuse of power, the imposition of a policy preference by a few unelected judges, against the democratically-expressed will of the American people. Justice Byron White, in his dissent from Roe‘s companion case, Doe v. Bolton, pointedly described the Court’s action as "an exercise of raw judicial power… an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court."n
Since 1973, things have gotten even worse. There has been a furious drive by advocates (including those on the bench) to preserve abortion rights against all attempts to limit them. Nothing is acceptable to the pro-abortion movement, and they systematically and regularly distort the law and politics to get their way. Abortion has tainted everything it touches, corrupting the professions (especially law and medicine). It has caused radical limitations of free speech rights (see the Court’s decision in Hill v. Colorado), and it’s stain has spread to other areas of the law as well
This can be seen most clearly in the legacy of the Court’s muddled and misguided decision in Planned Parenthood v. Casey in 1992. The plurality decision in that case thrashed about wildly to find a legal ground to further entrench abortion as a Constitutional right, finally settling on what is perhaps the most absurd, and justly derided, passage in any Court decision:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
The opinion also added these astonishingly arrogant remarks:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
This gaseous irrational nonsense has had a toxic effect on the law. It empowers judges to make up rights as they go along, untethered to any identifiably meaning in the actual Constitution, as it has been understood throughout our nation’s history. It eliminates the need for legal reasoning, and substitutes the policy whims of judges. It hands ultimate power into the hands of judges, who were never imagined by the Founders of our nation to have such a role in government. It eliminates self-rule, and substitutes a judicial oligarchy.
It led most recently to the Court’s lawless decision in Obergefell v. Hodges, in which our Black-Robed Platonic Guardian Rulers on the Court redefined marriage at the stroke of a pen to mean something that it never has meant, and never could mean. Who knows where it will lead next — "gender rights", assisted suicide, polygamy? Nobody knows, because reason no longer rules in our courts.
All this calls to mind one of the other horrendous decisions made by the Supreme Court, when it arrogated to itself the final authority to make policy under the guise of law — Dred Scott v. Sandford, the only decision prior to Roe that decided that a class of human beings was outside of the protections of the law and could be disposed at will. In his dissent from that decision, Justice Benjamin Curtis made the following prescient statement:
[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.
That, too, is the legacy of Roe v. Wade. So as we mourn today the pernicious effects of Roe on human lives, let’s also keep in mind its devastating impact on the rule of law and reason, as witnessed in our out-of-control courts.