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Pavlich: Overturning Roe expands democracy

Protesters for and against abortion rights argue outside the Supreme Court on Monday, June 27, 2022.
Greg Nash
Protesters for and against abortion rights argue outside the Supreme Court on Monday, June 27, 2022.

Six weeks after the leak of a draft opinion overturning Roe v. Wade sent an earthquake through the country and shock waves into the Supreme Court, Americans received a final verdict about the future of abortion law in America. 

“Now today, the Court rightly overrules Roe and Casey—two of this Court’s ‘most notoriously incorrect’ substantive due process decisions,” Justice Samuel Alito wrote in the majority opinion for Dobbs v. Jackson Women’s Health Organization. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

The 5-4 ruling, with Chief Justice John Roberts issuing a concurrence, properly sent the issue of abortion law back to the states. In an expansion of democracy, 50 state legislatures and governors will now work to represent their constituents more accurately. Abortion rights and pro-life activists will refocus their efforts at the local level, with both being forced to sharpen their arguments in an effort to convince Americans to come down on their side of the issue. 

Contrary to the narrative pushed in the media for decades, support for the overturning of Roe didn’t just come from pro-life activists. It was a restoration of constitutionally and the rejection of bad federal law supported by liberal, Democratic and pro-choice lawyers. Former Justice Ruth Bader Ginsburg was one of them.

“Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision,” the University of Chicago Law School published about an event in 2013. “Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since.”

Yale Law Professor Akhil Reed Amar is another and while he is a pro-choice Democrat, his view and work on the issue was cited in the leaked draft of the opinion. 

“Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft,” Amar wrote in the Wall Street Journal shortly after the leaked opinion was published. “In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of ‘life, liberty or property, without due process of law’—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s ‘due process’ argument textual gibberish.”

The future of abortion law is through debate and state representation, not interpretation of constitutional text that doesn’t exist. Abortion rights activists will continue to argue women have a right to an abortion at any stage of a pregnancy. Pro-life activists will use science to show the integrity of a baby in the womb and advocate for the protection of the woman and the life of the child. Some states like New York and California will work to expand abortion. Others like Mississippi and Texas will ban it altogether. States like Virginia will offer a 15-week compromise. Critically thinking voters will make their own decisions about the matter, based on personal beliefs and convictions, at the ballot box.

Abortion law being returned to the states by the Supreme Court allows Americans to have more of a say and additional opportunities to engage in the democratic process. The overturning of Roe is not only a win for life, but for the restoration of the U.S. Constitution and democracy.

Pavlich is the editor for and a Fox News contributor. 

Tags abortion rights Democracy local overturn Roe v. Wade Ruth Bader Ginsburg Samuel Alito SCOTUS

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