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Roe v. Wade is not super-precedent ... and it’s time to overturn

During the confirmation hearings for Amy Coney Barrett, Democratic senators threw everything but the kitchen sink at her, attempting to sidetrack her confirmation. Americans sat dumbfounded as Judge Barrett was scolded regarding the term “sexual preference” instead of the alleged acceptable term “sexual orientation.” A great deal of such silliness ensued, like asking Barrett to condemn white supremacy, or asking if she had sexually assaulted anyone.

A primary attempt to derail Barrett’s confirmation came with the questions on abortion rights. Although Barrett agreed with respect for the precedence of the Roe v. Wade, even that didn’t satisfy the Democratic senators who believe Roe is super-precedent. After almost a half-century of controversy, it’s time to admit that Roe will never become super-precedent. It should be overturned and sent back to the states and people.

Let me explain.

Minnesota Democratic Sen. Amy Klobuchar requested Barrett agree Roe v. Wade is a “super precedent.” As commonly understood among Constitutional lawyers, “Super-precedent” is precedence that so settled that no serious political actor would push for it to be overturned. An example of super-precedent would be Brown v. Board of Education, striking down segregation. Barrett answered Klobuchar by noting Democrats had been asking questions about Roe all day. Regardless, Barrett could not agree with Roe being super-precedence. Her quotation was prescient: “I think that indicates that Roe doesn’t fall in that category (of super-precedent) … Scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted.”

A senior Democratic aide at the hearing spoke to the Democrats’ ignorance of the divisive nature of Roe. They just could not understand why Barrett could not agree Roe was super-precedence: “Under her reasoning, Roe v. Wade could be upheld a dozen more times, but would still not be considered super-precedent. That’s because, according to her rationale, as long as right-wing groups continue to challenge Roe v. Wade in court, it’s vulnerable to being overturned.” The abortion Democrats seem to forget that even Supreme Court justices, like Scalia and Thomas and top Constitutional scholars hold Roe as bad precedent. This is in addition to serious federal and state politicians pushing for the overturning of Roe.

Overturning Roe is not only right by ending so much division in America, but right as what the Constitution demands. As the late Justice Antonin Scalia wrote of the court’s role: “It is perfectly clear that the original intent was that the Constitution would be interpreted by its original meaning. If you had asked the participants at the Constitutional Convention whether their debates could be an authoritative source for construing the Constitution, there would be no doubt the answer would be no.”

Scalia also noted: “Originalism was the constitutional orthodoxy in the United States until … the post World War Two Warren Court. The court is to use the words of the Constitution in the plain meaning of when drafted and not attempt to ascertain thoughts and possible intentions.” Founder Alexander Hamilton similarly asserted: “Whatever may have been the intention of the framers, that intention is to be sought for the instrument itself, according to the usual and established rules of construction.”

Instead of following original meaning, the court in Roe went well beyond the “usual and established rules of construction.” The court boldly admitted so. Specifically, the Roe court conceded that the first ten amendments do not include the general and absolute right to privacy encompassing the right to abortion in the text. However, the majority claimed “penumbras and emanations” from the Bill of Rights allowed for the inference of a general right to privacy which would encompass abortion. 19 years later, the Supreme Court majority opinion of Planned Parenthood v. Casey decision (decided by a split 5-4 vote), upheld abortion rights with similarly fuzzy language: “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 life.”

As Scalia and others have noted, abortion was not an issue foreseen during the drafting of the Constitution or amendments and therefore is properly left to the general police powers of the states.

Contrasting the Roe decision to the originalist Supreme Court of early 20th century illuminates the difference. In the first two decades of the 20th century, the push for women’s suffrage gained traction similar to abortion in years leading to Roe. The Supreme Court could have used a non-originalist interpretation of the 14th Amendment’s equal-protection clause to hold women’s suffrage as a Constitutional right.

Unlike the Roe court, that earlier court constrained itself to original meaning and the political process was able to drive states and then the 19th Amendment. This enshrined women’s suffrage without the division seen after Roe. That right has remained accepted by all Americans as true political super-precedent.

The court in 1973 should have left the issue of abortion to states or a Constitutional amendment. Time has shown it will never become “super-precedent,” as millions of Americans will continue to believe the unborn are being killed during abortion. It will remain the most contentious issue in American politics. Although Barrett should respect precedence, her role is to interpret the Constitution by original meaning. It has come time to admit that Roe was not properly decided and will never become super-precedent. It belongs with the states and people to decide.

Bill Connor is a 1990 Citadel graduate, 30-year Army infantry colonel and combat veteran. He is a writer and attorney and lives in the Charleston area.


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