STERN: 'Roe': A Case for Liberty

Since the day Roe v. Wade was decided, the pro-life movement has perpetuated the myth that the ruling is invalid, absurd and rooted in a fanciful interpretation of the Constitution. This tactic is not only brilliant as a strategy, but an utterly dishonest denial of a fundamental constitutional right.

At the heart of Roe is not the so-called “right to privacy” but rather the guarantee of liberty. The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty or property, without due process of law.” That sweeping command has inevitably presented problems of interpretation for our judiciary. Moreover, the exact definition of “due process” is eternally elusive. Does it merely mean that a citizen must receive a fair trial before having her liberty snatched away? Or could the light of liberty shine, at times, entirely beyond the state’s reach?
Conservative and liberal justices alike have agreed that it does. Time and time again, the Supreme Court has found that certain laws are too egregiously intrusive to survive the Fourteenth Amendment’s commitment to liberty. A law that deeply invades our sphere of personal freedom is not a valid law at all; its very enforcement would violate the Constitution. This legal doctrine, known as “substantive due process,” is the basis for many of the last several decades’ most cherished rulings — the Court did not, as the pro-life movement often suggests, concoct it exclusively for Roe. In a 1961 case concerning birth control, Justice John Harlan II, a conservative appointed by Dwight D. Eisenhower, defended substantive due process, describing it as “a rational continuum which, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

Harlan considered access to contraceptives to be integral to this freedom. The Court agreed in Griswold v. Connecticut and Loving v. Virginia, which struck down laws banning interracial marriage. Writing for a unanimous Court, Chief Justice Earl Warren declared, “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”

Surely the pro-life movement concurs with this sentiment.

Roe v. Wade, then, was little more than a logical extension of these hallowed principles. In Roe, Justice Blackmun, a conservative appointed by Richard Nixon, wrote for a 7-2 majority that a state may not force a woman to carry an unwanted child to term; to do so would obviously infringe upon her personal sphere of liberty. The Court found that the government may not place restrictions on abortions within the first three months of pregnancy, but allowed increasing regulations after that point, drawing the legal line at viability. A fetus, Blackmun noted, is not a “person” by any constitutional definition; rather, it represents the potential for a person. Mandating that a woman who bears this potential within her body spend nine months pregnant, give birth and possibly face a lifetime of regret or hardship trespasses upon any sound definition of liberty.

That reasoning is firmly rooted in precedent and in the text of the Constitution. It remains good law today. The Court most recently reaffirmed it in Planned Parenthood v. Casey, when Justice Kennedy, a conservative appointed by Ronald Reagan, proclaimed that first trimester abortion bans violate the “realm of personal liberty which the government may not enter.” The Casey court did narrow Roe somewhat, writing that abortion restrictions must not pose an “undue burden” for women. According to the Court, this standard permits several first trimester regulations, such as ultrasounds and waiting periods. Yet the basic principle of Roe was upheld — and has been ever since.

When the pro-life movement argues against Roe’s reasoning, then, it is arguing against a constitutional doctrine central to modern American jurisprudence. The movement’s rejection of substantive due process is a rejection of the notion that our constitution preserves a zone of personal liberty for every — real, living — citizen. Such ideas were once tenets of conservatism, but modern conservatives’ blinkered fixation on abortion rights has forced them to redefine their basic objectives. The core of Roe v. Wade was developed, formalized and upheld by conservative justices. It is sound reasoning and sound law; to deny that is to repudiate our Constitution’s promise of liberty.


Mark Joseph Stern is a senior in the College. LETTERS OF THE LAW appears every other Tuesday.