Originalists on the Supreme Court may not overturn Roe v. Wade

Will the Supreme Court overturn Roe? It’s not likely, for three reasons.

The Constitution Itself. According to the Court’s super-majority (7-2) decision in Roe v Wade, the grounds for permitting abortion are deeply rooted in the Constitution itself. According to the Court, the due process clause of the 14th Amendment presupposes a right to privacy. If we have a right to privacy, then we also have a right to abortion. We can’t have one without the other. Even though the right to privacy is not explicitly in the Constitution, the 9th Amendment states that we have rights not enumerated in the Constitution.

Think about the implications of overturning Roe. What else will fall with it?

Overturning Roe will do far more than only deny pregnant women the right to control their own bodies. If the right to privacy means anything at all, it is the right to control one’s own body. Without the fundamental right of privacy, then many other basic liberties are at risk, including our freedoms of speech, press, religion, assembly, firearms, self-incrimination, and security in our persons and effects (the Bill of Rights). Are you ready to give up your guns? The right to make your own medical decisions? Raise your own kids? Keep your thoughts and opinions private? These rights guard us against totalitarian control by government. A truly conservative Court will preserve our freedoms by keeping local, state, and federal government out of our pockets, bedrooms, phones, minds—and bodies.

(2) Two Score and Seven. Roe has been the law of the land since January 22, 1973. According to Roe, like other freedoms, abortion is not an absolute right. Roe allows restrictions based on medical knowledge, and prohibits abortion during the last three months of pregnancy, unless the doctors cannot save both the baby and the mother. But even in these tragic circumstances, a woman can heroically decide to risk her life to save the baby. Nothing in Roe prohibits heroic efforts by the mother and her doctors to save the baby. Imagine yourself as this woman. Roe gives no one else the right to decide for you. Are you willing to give up this right? To let the government decide?

For centuries, Protestants and Catholics believed God implanted the soul at quickening or birth, not conception. Many pregnancies then and now ended in miscarriages. Despite today’s amazing medical achievements, no one can guarantee a live birth. The old belief still survives in many laws, customs, and social practices. Most people still believe a miscarriage is not as bad as the death of a newborn. The soul-conception view is rooted in a recent religious belief, not in history, and not in the biology of medicine and genetics. For a conservative Supreme Court to support one controversial religious viewpoint over others would be a terrible precedent.

(3) Originalism. This is the doctrine of the Justices recently added to the Court. Originalists believe the Constitution should be applied today, as it was understood when it was written. This doctrine does not guarantee overturning Roe, because the Founders likely believed many of the points just made above. Neither Common Law nor the Bible equates killing an infant, which is murder, with intentional or negligent termination of a pregnancy. Funerals were held for infants, not miscarriages. Even though the text of the Constitution is certain, its interpretation by conservative Justices is not.

Overturning Roe will likely require an Amendment to the Constitution. An Amendment would be the more democratic strategy, since it would require broader consensus among the people and the States, and not rely primarily on the ideology of a few Justices and the corrupt agenda of the Senate Majority Leader, Mitch McConnell. Denying consideration of the legitimate nominees of the other party is not democracy. The other party represents millions of Americans. Controlling the outcome by denying their Senators of the opportunity to vote is not democracy—it’s tyranny.

Jack Weir is a Professor of Philosophy Emeritus at Morehead State University.