Overnight, a Texas law went into effect protecting babies from abortion once they have a detectable heartbeat. Abortion activists had filed lawsuits to throw out the law, but for various (and largely procedural) reasons, they failed at the federal appeals court. The U.S. Supreme Court declined to take action on it before the law went into effect.
The legal procedural matters have caused all sorts of confusion, but that’s all of secondary import behind the substance of the case: Is the act of stopping a baby’s beating heart protected by the Constitution? Or do states have a place protecting that baby?
From a slightly higher altitude, the question is: Were the Supreme Court cases Roe v. Wade and Planned Parenthood v. Casey correctly decided?
Because the media and academia all believe abortion ought to be protected, they will argue as if Roe and Casey are good, are part of the Constitution, and are supported by the public. But that’s all wrong.
For starters, most pro-choice constitutional scholars admit that Roe was hideous jurisprudence. It was not really constitutional interpretation at all, but ideologically motivated legislation from the bench.
Justice Harry Blackmun’s clerk, Ed Lazarus, wrote, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”
Columnist William Saletan admitted that “Blackmun’s [Supreme Court ] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.”
John Hart Ely wrote that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
You can find plenty more here.
Yet, you’ll also see the media declare endlessly that the public supports Roe v. Wade. And that’s only true in the most superficial sense. The public, wrongly convinced by sloppy and biased media reporting that overturning Roe would amount to a few judges instantly outlawing all abortions, tells pollsters that it wants Roe upheld. If you ask them about the things Roe does, though, you get very different answers.
A majority in a recent CBS poll (54%) want abortion to be more restricted than it currently is. That means they want Roe and Casey to be struck down or replaced with a completely different court precedent.
There is majority support for requiring a 24-hour waiting period for abortions (65% to 30%) and for requiring doctors to show the mother an ultrasound of her baby before an abortion (52% to 43%). Laws to that effect would require the overturn of Roe in federal jurisprudence.
I cover this all in more depth here.
There’s an interesting debate to be had over the Texas law, and there’s obviously great disagreement in this country about the justice of aborting very small, in-utero babies. But we shouldn’t let the media get away with pretending that Roe is a respectable precedent, or that most people agree with the abortion industry’s position.
