The Missing Dimension in Roe v. Wade

The Supreme Court heard oral arguments in the Dobbs v. Jackson Women’s Health Organization case on December 1. The case involves a 2018 Mississippi state law that bans abortions after 15 weeks. If the Supreme Court decides to uphold the state law, it would contradict previous precedents set in Roe v. Wade and Planned Parenthood v. Casey. This would not necessitate Roe v. Wade being overturned, but there is the chance.

Even if the Supreme Court does overturn the Roe v. Wade ruling, abortion would not become illegal; it would merely give each state the right to decide the state law on abortion.

Roe v. Wade is now 48 years old. It has become mythologized by the left: a revered moment in the culture war waged to change society for generations. It marked a turning point in the moral trajectory of America.

If Roe v. Wade were overturned by the Supreme Court now, it could mark another turning point.

In order to understand the significance of this moment, a broad historic overview of the case is needed. A lot of ugly history led to the creation of Roe v. Wade, and it exposes the missing dimension in the argument.

Process, Penumbras and Privacy

Alexis de Tocqueville wrote in Democracy in America: “I am unaware that any nation on the globe has hitherto organized a judicial power in the same manner as the Americans …. A more imposing judicial power was never constituted by any people.” With the amount of responsibility and influence the court has, Tocqueville said, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” He wrote that in 1835. History has fully validated Tocqueville’s observation. Every major political and moral question has eventually had its day in the Supreme Court. The all-important question is, how does the court make these decisions?

The Oxford Companion to the Supreme Court states: “One does not have to look far to find instances in which the court’s reaction to claims of rights has reflected the larger society’s concerns. [The court’s] agenda of course reflects the societal agenda.” In other words, most of the time a societal agenda is the guiding principle, not the Constitution.

This has not been true in every single decision, but the historical record shows when it comes to something important to the liberal agenda, most justices will reach the desired verdict regardless of what the law says. Robert Bork wrote in The Tempting of America: “If [judges] can be persuaded to abandon the idea of original understanding, they are quite likely to frame constitutional rules that reflect the assumptions of modern liberal culture.”

The majority opinion reached in Roe v. Wade was based on a number of previous precedents set by the court. The court found abortion as a right based on two principles: 1) right to privacy, and 2) states’ laws can only limit the right to abortion if the state proves the rights of the fetus outweigh the rights of the mother, which is substantive due process.

Due process is simply the requirement that legal matters be resolved following the proper procedures and principles. This is a guaranteed right in the Fifth Amendment. However, the Supreme Court added to this by creating “substantive due process,” which means due process cannot impinge upon certain fundamental rights. The substance of the law must protect those rights, even if it is unrelated to the procedure.

This principle has been widely used by the court but was created in the infamous Dred Scott v. Sandford case, which granted a constitutional right to slavery. This case occurred just before the Civil War, when some states abolished slavery and others permitted it.

Dred Scott was a slave in Missouri. When his owner took him on a trip to Illinois, Scott filed a lawsuit for his freedom, since he was a slave in a state where slavery was illegal. By the time it reached the Supreme Court in 1857, the court was forced to decide what the Constitution ruled on the slavery question. The Supreme Court was dominated by justices from the South, including Chief Justice Roger Taney. In his majority opinion on the case, Taney ruled that the Constitution protected slavery forever. He reached this conclusion by changing the due process clause of the Fifth Amendment, which says that no property can be deprived from an individual without “due process of law.” Taney reasoned that slaves are property, and no law can remove property, even if the state says slaves are not property. The substance of the law had to protect the right to slavery.

This was pure invention but has become a mainstay in constitutional law. This principle was later applied to the 14th Amendment’s due process protections. It took a civil war costing 750,000 lives to repair the damages inflicted by this ruling. No one wants to acknowledge one of the pillars upholding abortion was invented to protect slavery.

In 1965, another watershed case appeared before the courts. Griswold v. Connecticut was a challenge to an antiquated state law that outlawed use of contraceptives and allowing access to them. It was not enforced and simply could have been annulled by the state legislature. However, Yale law school, Planned Parenthood and a handful of other organizations worked up the case in order to further a liberal agenda, as Robert Bork wrote: “Griswold is more plausibly viewed as an attempt to enlist the court on one side of one issue in a cultural struggle.”

The court ruled that the Connecticut law was unconstitutional. The majority opinion by Justice William Douglas reasoned that the written text of the Bill of Rights extends to cover areas not mentioned in the law (non-enumerated rights); therefore, each provision implied “zones of privacy.” Thus they could be extended to include the right to privacy in a marriage, and exclude the state from regulating relations between a husband and wife. Decisions like this gave rise to the idea that judges could almost unilaterally establish rights that are not explicitly stated in the law.

This is the background on the two pillars that uphold the reasoning behind Roe v. Wade. Now let’s examine some of the specifics of the abortion case.

Grasping at Straws

The abortion matter first came before the court in December 1971 in the form of two cases. Roe v. Wade was a challenge to a Texas law that banned all abortions unless the mother’s life was at risk. Doe v. Bolton was a challenge to a Georgia law that had several procedural conditions but was not as restrictive as the Texas law.

During the initial conference of seven justices (two open spots were not filled yet), it became clear that around four of the justices (though different justices have different versions of what happened) thought abortion was a legal right and the state laws were too restrictive, but they didn’t know how to explain how abortion was legally constitutional. The other three, including Chief Justice Earl Warren, thought the laws didn’t violate any principles in the Constitution.

Thus began more than a year of deliberations between the justices, writing letters and arguing if the case had standing, were the laws too vague, was it a right to privacy, which amendment should they use—the Ninth or the Fourteenth, etc. Once you break through all the legalese and scholarly language, you realize these men were grasping at straws.

Justice Harry Blackmun was tasked with writing the majority opinion, but was the most junior member of the court. After several drafts, and taking on the opinions of several other justices, Blackmun grounded Roe v. Wade in the precedent of Griswold v. Connecticut. He wrote: “The right of privacy, however based, is broad enough to cover the abortion decision.”

This led to the question of weighing the rights of the fetus against the rights of the mother: Is the state allowed to protect the life of the fetus? The verdict makes the assertion that the 14th Amendment’s guarantee of “nor shall any state deprive any person of life, liberty or property, without due process of law” does not apply to a fetus, because the fetus is not a “person.”

The court did decide that the state could limit abortions within a certain time frame. But what time frame is the correct one? Blackmun wrote in the memo accompanying one of his final drafts: “You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” In the final opinion, viability was also added. A few unelected judges had arbitrarily decided when a fetus’s life begins, that it is not a person, and when it can be legally protected.

While more details could be explored, this is the essential background of Roe v. Wade. Since that decision in 1973, over 63 million children have been aborted in America. That is equal to 40 percent of all Americans born since 1973.

The Missing Dimension

The late Robert Bork criticized the Griswold-Roe approach to the Constitution, saying: “The Bill of Rights was expanded beyond the known inventions of the framers. Since there is no constitutional text or history to define the right, privacy becomes an unstructured source of judicial power.” This is the essence of non-enumerated rights.

However, many others have argued that many rights Americans hold dear, such as the right to be left alone by the government, to have marital privacy, etc, are not in the text of the Constitution but are perceived to be protected by the Constitution. Indeed, the framers did not lay out every single scenario in the law, but just the most essential. We now come to a most important question: Did the framers provide some sort of guidance on this issue, or did they intend to let judges decide for us?

The answer to that question reveals the missing dimension to Roe v. Wade, American law and society today!

In his first inaugural address in 1789, President George Washington said, “The foundations of our national policy will be laid in the pure and immutable principles of private morality.”

Thomas Jefferson, primary writer of the Constitution, wrote in Notes on the State of Virginia: “Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?”

The second U.S. president, John Adams, said, “Statesmen may plan and speculate for liberty, but it is religion and morality alone which can establish the principles upon which freedom can securely stand.”

The framers intended Bible-based morality to guide the nation. That is how the “non-enumerated rights” should be guided and what the framers intended: Simply ask the question, what does the Bible say about the issue? Instead of being guided by the human reasoning of judges, we should be guided by revelation from God! The Bible clearly settles the abortion issue of Roe v. Wade (please read our reprint article “Is Abortion Really Murder?” to see what the Bible says).

The courts today reject this missing dimension. History shows that the Supreme Court has been an ally of the radical left’s culture war on America. There have been many awful moments of broken judgment. However, we could be witnessing a major shift. Trumpet editor in chief Gerald Flurry wrote in “This Is Treason! Why Is Nobody Reporting on It?”:

Despite the media silence and censorship, I believe we are at a turning point. I am convinced that, right as the radical elites’ power is surging and they are leading America to its demise, their treason is about to be exposed and they will lose their power.

As I have written before, Bible prophecy shows that Donald Trump is going to return to power. I believe the dramatic turn of events that will result in his reinstatement has already begun.

Mr. Flurry wrote that the Bible indicates the Supreme Court could play a role in Trump’s return to the Presidency. If the Supreme Court has the courage to overturn Roe v. Wade, it might be another sign that the tide is turning against the radical left in America.

To learn more about where world events are leading, read our free booklet America Under Attack.