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Roe v. Wade stained the moral character of the nation by giving us national abortion on demand. Often neglected in the analysis of abortion jurisprudence is the long road that got us to Roe. Indeed, a series of bad court decisions fundamentally changed the way we interpret the Constitution, birthing this strange new era of judicial activism — an era that has yielded judicial "super-legislation" for which no one in the United States voted.
A major turning point came with the legalization of birth control for married couples in Griswold v. Connecticut (1965), which established the "right to privacy" — a "right" that cannot be found anywhere in the black letter of the Constitution.
A later case, Eisenstadt v. Baird (1972), extended the "right" to use birth control to unmarried couples. This prompted the infamous dictum from Justice William Brennan: "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
This reasoning set the stage for the court to hand down Roe v. Wade in 1973, through which the "right" to privacy essentially turned into a "right to abortion," and was extended to a woman and her doctor, and termination of the unborn was legalized.
But Roe didn't end the conversation. In 1992, Roe was legislatively challenged by pro-life Democrat Bob Casey, causing Planned Parenthood to sue the state of Pennsylvania for its newly passed abortion restrictions.
The High Court's plurality decision created the legal perception that Roe is "well-settled law." It also introduced the "undue burden" test as the new standard of review of the constitutionality of abortion restrictions. Under the test, the State is prohibited from placing a substantial obstacle in the way of a woman seeking an abortion prior to the baby's attainment of viability.
The Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg is renewing the possibility of overturning Roe v. Wade. President Trump is in a place to decisively impact U.S. abortion jurisprudence if he nominates a justice who both believes in the humanity of the unborn and knows that Roe v. Wade was bad law worth overruling.
Watch the full episode of The Download—Roe v. Wade Revisited.