Facts, the Law, and Stuff.
KELSEY COLLIER-WISE — Since Volante Opinion is now Volante Opinion on Abortion, I thought I’d throw one more log on the fire before I begin enjoying my summer and stop thinking about Constitutional law altogether. Instead of getting into the “opinion” stuff, I’m going to stick to some undisputed (but often misstated) facts about the law surrounding abortion. Not quite as incendiary, but perhaps a little more informative (this is a newspaper, after all — well, the blog of a newspaper — well, the blog of a newspaper section).
Roe v. Wade did not make abortion legal. Abortion was already legal in several states and restricted in various ways in others. Roe set a standard that restrictions on abortion had to meet to be constitutional.
Obviously, Roe v. Wade is an important case. Landmark even. But people need to stop talking about it like it’s the controlling case on abortion restrictions. There have been a number of cases that came after Roe that have significantly changed the standard. Reading Roe is not going to tell you much about how restrictions are evaluated by a courts today.
The constitutional right to privacy was not established by Roe v. Wade, and abortion restrictions are by no means the only area governed by it. People can certainly make a legitimate argument that there is no right to privacy in the Constitution, but be aware that without it, states would be able to arrest people for providing birth control, or allow police to bust into your home and arrest you for engaging in consensual sex.
Roe v. Wade is not especially notable in the way it deals with “state’s rights.” I’m not convince there was ever a time when states had all these supposed rights. If I remember correctly, we even fought a war over it. Not that things can’t change, but at least currently, the tenth amendment is pretty useless. And while the idea of the Bill of Rights applying to the states is a relatively new one, it’s an idea that most Americans get behind, primarily because they don’t like the idea of states being able to run roughshod over people’s liberties, segregating schools, using evidence from unlawful searches, etc.
Plenty of people have issues with the current standard for abortion restrictions in this country (I would be one of them). Plenty of people are unconvinced that a right to privacy exists in the Constitution. I’m sure there are even plenty of people who don’t believe in the incorporation of the Bill of Rights by the 14th Amendment. But none of those things really have much to do with Roe v. Wade.
