Roe v. Wade from a Judicial Perspective
Roe V. Wade is unique in terms of the emotion it raises, based on the two extremes. Almost never does one hear or see actual judicial considerations. And, based on judicial concerns, Roe v. Wade is a flaming disaster.
Let’s put a cork in the highly flammable emotions involved here and consider abortion for what it clinically is. It is a medical procedure, not one (at the time of the court decision) capable of being done by the woman involved. The medical community is one of the most highly regulated industries there is. There is no other part of it that has been ruled a Constitutional right!
Even worse, abortion is normally a medical procedure of convenience; it is not a life-saving process (except in rare cases, which have always been legal). Does it make sense that there is no judicial precedence that makes an appendectomy a legal right, but an abortion is? What about heart transplants? Control over one’s own body? Fine; do an abortion on yourself without any help from the medical community.
Arguing minors have a right to have them without informing parents is ludicrous, as would be the only medical procedure allowed to be done that way! Also, arguing partial-birth abortions should be covered as an extension of the judicially granted right puts abortion beyond the specifically granted Constitutional right to bear arms (otherwise, I could have a M1 Abrams tank in my garage!).
Roe v. Wade completely ignores the constitutional component that actually covers this (and a great deal of other areas): the 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Decisions such as Roe v. Wade make extensive reference to the ‘Elastic Clause’
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”
The problem with this argument is that it completely ignores the temporal nature of the Constitution. The 10th Amendment was added afterward and, therefore, it takes precedence over the Elastic Clause! Even if laws had been passed at the national level to make abortion legal (they have not been), this makes abortion a State’s issue; exactly what it was before Roe v. Wade.
Those that say abortion was illegal , that it was only done as a ‘back alley, coathanger’ procedure before Roe v. Wade were not around (or had no contact with the medical community) before 1973. In Kansas, the rule was ‘medical necessity’, which was very loosely defined. One doctor was well-known for listing the medical need as ‘depression’.
Was abortion openly accepted by the general community (medical and otherwise)? Of course not; but part of the ethical question I have not addressed is, should it be? Should assembly-line abortions be performed as a commodity medical function, not far removed from flu shots? Or should it be a last-resort option? Or not available at all? Should partial-birth abortions be allowed? That is the ethical question that has consumed so much. However, the judicial aspects are far clearer, more rational and should be the driving factor of the discussion.