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The Mistake of Roe v. Wade

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AP Photo/J. Scott Applewhite

Today, Roe v. Wade is championed as a beacon of women’s rights, the foundation of the motto: “my body; my choice,” and the crux used to end an estimated 62 million potential human lives across the country. The landmark case was decided nearly fifty years ago finding a Texas state law banning abortions violated a woman’s privacy right in both seeking and obtaining an abortion. The rights of the fetus, however, were completely ignored in Roe’s ruling. The reasoning found in Roe was, and remains to this day, fatally flawed. 

Roe v.Wade was decided on the proposition that within the ‘penumbras and emanations’ of the Constitution there exists a right to privacy. It is within this right the Court opined a woman can make the decision to abort her pregnancy.  This, however, is a leap. It is a leap in logic and a leap over any competing rights of the fetus. The right to privacy, even a woman’s right to privacy, does not equate to a right to abortions. And, if you step outside the penumbras and into the light, there exists, self-evidently, the right to life. The right to life in nearly all circumstances trumps a person’s privacy rights. And, before Roe, this right even extended to the those in the womb.  

Roe was, unfortunately, analyzed by looking through an incorrect lens, looking at the incorrect person, and looking at the incorrect right. With advances in science, we now know from the moment of fertilization, the fetus is not part of the mother; the fetus is simply inside the mother. The fetus’s independent DNA exists at the time of fertilization and from every moment, heartbeat, and developmental stage thereafter. It is not the case that the mother is dealing with a part of her own body. She is dealing with another person’s body inside her own. Thus, the fetus is not part of the mother’s body anymore than it is part of the father’s. This is where the Court in Roe errs.  

Roe ignores entirely any right the fetus may have, focusing only on the privacy right of the mother. However, this is not a question of the mother’s rights because the mother is not at issue here. It is the fetus’s rights deserving of analysis and recognition. The abortion decision is not an issue of the mother’s privacy, but of the fetus’s life. This is, still, not to say the right to privacy does not exist. It does. But when balancing these rights, the right to life, not of privacy, is the clear winner. 

Some states, recognizing the competing rights at issue, are once again challenging Roe’s federal precedent. For example, Texas’s Heartbeat law bans a physician from performing elective abortions when a fetal heartbeat can be detected, typically around the six-week mark. This law was recently brought before the Supreme Court seeking an injunction in Whole Woman’s Health v. Jackson. That injunction application was denied in a heated opinion. And, the court was right to do so. Further, a Mississippi law bans physicians from performing elective abortions after the fifteenth week. Dobbs v. Jackson Women’s Health Organization, the case challenging this law, is scheduled for argument before the Supreme Court December 1, 2021. This case directly seeks to overturn Roe v. Wade and its progeny. And, the Court should oblige by correcting the mistaken analysis grounding Roe v. Wade and its progeny by looking this time through the correct lens, looking at the correct person, and looking at the correct right, which is that of life, not of privacy 

Overruling precedent is not something to be taken lightly. But, it can and sometimes should be done. We need only be reminded of Plessy v. Ferguson, when the Court ruled separate was equal; or of Buck v. Bell, when the Court ruled an 18 year old female could be sterilized against her wishes; or of Dred Scott v. Sandford, when the Court ruled African-Americans were not citizens.  

Roe v. Wade is one of those cases ripe to be overruled. Simple as that. It has green-lighted the termination of sixty-two million pregnancies. One million lives every year since 1973. And what’s worse? These numbers are shrugged off with apathy. By treating potential life with such callous passivity, it is no wonder many view the unborn as disposable at the mere whim of the mother. This attitude degrades, belittles, and trivializes not only the power women possess to bring life, but the value of life itself. Thus, when cases like Dobbs and Whole Woman’s Health arrive before the Bench of the Supreme Court, hope remains that the Court will finally reverse the grievously erroneous precedent set by Roe. 

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