Washington Week: Student Voices (O)

Column: Roe v. Wade exemplifies judicial activism
By Ben Tarr
The Daily Campus, U. Connecticut
September 12, 2008

Abortion has become a highly politicized issue in American society. It is one of many issues which divide Sens. McCain and Obama in our upcoming presidential election. John McCain rightfully wishes to overturn the famous Roe v. Wade case, which generally made it much easier for women to secure abortions than prior to the ruling. Barack Obama endorses the Roe case; according to Obama's Web site, he received a "100% pro-choice rating with Planned Parenthood and NARAL Pro-Choice America."

President Bush appointed two conservative, anti-Roe appointments to the Supreme Court, Samuel Alito and John Roberts. In addition, many of the justices are older than the light bulb, perhaps opening the door for the next president to appoint justices to the bench. Roe v. Wade may soon be challenged, and the Supreme Court balance is crucial in deciding what the outcome of that future case will be. Future justices must overturn the Roe case due to the poor Constitutional reasoning employed during the ruling.

Abortion opinions aside, the Roe v. Wade Supreme Court ruling of 1973 exemplifies all that is wrong with our Supreme Court. This case provides an example where the court deviated from its responsibility, which is to judge the constitutionality of a particular law. The Roe case illustrates the deleterious effect on our democracy when judges become political actors.

Roe challenged the constitutionality of a Texas abortion law which proscribed attempting an abortion unless the purpose was to save the mother's life. The majority opinion alleged that this law violated the 14th Amendment's Due Process Clause, which protects the citizens' right to privacy against state action.

The court ruled that the right to privacy included a woman's right to terminate her pregnancy, while also acknowledging in the opinion that "the Constitution does not explicitly mention any right of privacy."

Claiming that the right of privacy, which is the crux of the majority's opinion, includes abortion is a massive stretch of the Constitution and is dishonest; we have a legislative branch to draft laws and a Supreme Court to interpret the constitutionality of these law. Let it stay that way.

The ruling goes on to state that prior to the end of a woman's first trimester, the abortion decision must be left to the medical judgment of the woman's physician. The Court does introduce medical facts to substantiate that the trimester that the pregnant woman is in should affects doctors' decisions on abortions, but Supreme Court justices are not doctors, and these pieces of medical advice are not contained in American law anywhere. Therefore, they should not be used in the decision.

I agree with the Court's overall ruling that the Texas abortion law proscribing abortion unless needing to do so to save the mother's life is a misguided policy, yet the Constitutional justifications for ruling on such an abortion case are nonexistent or tenuous at best. The right to privacy cannot be used to substantiate the majority's case because it does not exist in the Constitution.

Justice Rehnquist wrote an eloquent dissent in this case, objecting to the Court's ruling that "a state may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy." This sounds like a politically motivated ruling not based on law in any way. Rehnquist continues to interpret the case in much the same way that I have. He says, "I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case." He placed the word "privacy" in quotations because he knows that this does not exist in the Constitution.

This is not the first case in which the court has illegally and unconstitutionally combined branches of government. If one reads the landmark court decision of Brown v. Topeka Board of Education, which ruled that separate educational facilities for blacks and whites are "inherently unequal," it is immediately apparent that the justices wanted the decision to be readable. Most court decisions contain complex, sometimes incomprehensible language. While the court made the correct ruling, its layman's terms language reflects the court's desire to make the law, not to interpret it.

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