Earlier this year, Vox published an article titled “6 myths about Roe v. Wade, debunked,” where they attempted to invalidate the Right’s most common arguments about abortion.
Instead of discussing the valid criticisms against the decision of Roe v. Wade, however, Vox proceeded to bash the position of all pro-life conservatives and anyone who argues against the constitutional validity of Roe.
Throughout the entire piece, the author makes six (unsuccessful) attempts to derail the Right’s arguments against Roe as established law, claiming that “most of the criticism is dead wrong.”
1. It is not true that Roe is not rooted in well-established constitutional principles.
Besides the strange double-negative throwing readers off, Vox purposely misleads those who do not know their constitutional history. To a degree, Roe v. Wade is based off of a legal precedent from Griswold v. Connecticut, which established the right to marital privacy in 1965. Because of Griswold, the Court was able to claim the right of privacy included abortion, thus striking down any law which criminalized abortion. However, the decision in Griswold was not as clear-cut as may seem. In order for the Court to justify their decision, they drew from the First, Third, Fourth, and Ninth Amendments, claiming there was a “penumbra” in the Bill of Rights that allowed for sexual privacy. While technically it is true that Roe v. Wade’s decision was based on a legal precedent, to say it is well-established is clearly false. The right to sexual privacy is nowhere in the Constitution and the justices who established it had to stretch the Bill of Rights to make it fit in their agenda.
Additionally, Vox claims because Roe v. Wade has not yet been overturned, the decision must be rooted in firmly established constitutional principles. Looking back in history, we know for a fact this is not true. In 1857, the Supreme Court ruled in Dred Scott v. Sandford that slaves were not American citizens. The decision was not overturned until the 1890s, when the Court ruled the Fourteenth Amendment extended to states, not just the federal government. Just because the Supreme Court ruled a certain way does not mean the decision is firmly established in the Constitution or that it is fixed law--Supreme Court decisions have been and will continue to be overturned.
2. Roe does not formally forbid virtually all state regulation of abortion.
Originally, in Roe v. Wade, states could not prevent a woman from obtaining an abortion in the first trimester, but could regulate it in the second and third trimesters. While it is true Roe gave states room to regulate abortion in the later two trimesters, the Court invalidated 50 state laws which sought to regulate abortion. One such case was Bellotti v. Baird in 1976, which overturned a Massachusetts law requiring parental consent for minors wanting an abortion. States were further restricted on what regulations they could pass after the undue burden doctrine was established in Planned Parenthood v. Casey. It was because of the precedent set by Casey that the Court could overturn any state law they felt was too restrictive on the access of abortion.
According to this Vox author, the regulation of abortion is wildly upheld by the Supreme Court and the doctrine of “undue burden” is loosely applied. However, this is clearly not the case. Through the doctrine of undue burden, the large majority of state regulations which were litigated have been invalidated. While the author says the Court has “struck down only one regulation under Casey from 1992 to 2016,” he provides no evidence to support this claim. While there have been very few cases brought to court in recent years regarding abortion, multiple courts--not just the Supreme Court--have struck down multiple pieces of state legislation, citing the laws caused an undue burden. Among others, some cases include Stenberg v. Carhart I (2000), Stuart v. Huff (2011), Isaacson v. Horne (2013), Whole Woman’s Health v. Hellerstedt (2016), and Whole Woman’s Health v. Paxton (2017).
3. But abortion is much more tightly regulated in France!
I am not exactly sure what this has to do with the argument Vox is presenting, since we are solely talking about abortion in the United States. The fact France has more restrictions on abortions has no impact on abortion here, since they are a sovereign state just like the United States. Regardless, we should be more like France and implement more restrictions on abortion. Instead of claiming Roe is constitutional, Vox makes this point for us, showing that abortion should be more restricted than it actually is.
4. Roe’s protections aren’t primarily about the gestation point beyond which the state may forbid abortion.
This is flat-out a lie. While is is true Roe’s decision allowed states to completely ban abortion in the third trimester, the entire case was based on the gestation point of a pregnancy. The whole legal framework Roe created was broken into the three trimesters, where in the last two trimesters states could regulate abortion. To boil it down even further, Roe stated abortion could not be regulated in the first three months of the pregnancy, but states could regulate abortions in months 4-6 if it protected the health of the mother. Additionally, in months 6-9 states could legally ban all abortions. Casey’s decision did change how the regulation of abortion was broken down, instead basing it on the viability of the preborn child. Roe on the other hand, clearly broke down any and all regulation by trimester and gestation of the preborn child.
5. Overruling Roe is no big deal because public opinion will protect abortion.
While it is true various polls have found overwhelming support in maintaining legalized abortion, they are often misleading. In 2017, for example, Pew Research, found approximately 7 out of 10 Americans oppose overturning Roe, while another poll by Pew Research found the majority of Americans do not know about the general facts of the case. In fact, only 44 percent of people under the age of 30 even knew Roe dealt with abortion, compared to 62 percent of all adults. The argument the majority opinion will protect Roe and the right to legalized abortion is misleading, especially since only a small fraction of the population even know Roe v. Wade is connected to abortion.
Vox also claims pro-lifers say overturning Roe is no big deal, but it is in fact a big deal. We agree with Vox on this last point. Overturning Roe v. Wade and ending the mass murder of millions of babies every year would be a massive deal.
6. Overruling Roe won’t return the issue to the states.
Because abortion was up to the individual states before it was legalized in Roe, it is not that far of a reach to say abortion will revert back to the states to decide, assuming Roe is overturned. While both the Democratic and Republican Parties are increasingly supportive of abortion on a national level, as seen by the Senate voting to once again fund Planned Parenthood, it has very little to do with what happens regarding abortion on a state-level. Vox gives very little evidence to depict overturning Roe will not return the issue of abortion to the states. Instead, they make an emotional, illogical argument about how much safer abortions will be for women if it remains legalized. Much like the other claims the Left likes to make, common sense and facts say otherwise--abortion will most likely be up to individual states if legalized abortion ends.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official position of Human Defense Initiative.