Josh First's Blog

Roe v. Wade was never about abortion

Like so many other far-reaching court decisions, or laws, or executive orders emanating from Washington, DC, Roe v. Wade was originally cast publicly as something it actually wasn’t.

Yes, on its face Roe v. Wade was about abortion, the termination of human life while still inside the mother’s body. But in fact, the way the court’s decision was structured, it was the exuberantly creative legal theory behind the Roe decision that was most important. And it was that legal theory that laid the ground work for so much of the openly political activist behavior we see emanating from way too many judges and federal bureaucrats across America.

Roe v. Wade was decided within a time of great social turmoil and cultural change, and a lot of the contemporaneous political activism pressure from the Left is visible in Roe. Especially the twin evil sisters of moral relativism and intellectual relativism. One example is the in-artfully creative use of the word “penumbra,” a sort of shadowy shadow that reputedly lay over so many different amendments to the US Constitution that clearly listing them all was just too tiring to Roe’s authors. Yes, the Court majority invoked aspects of the Fourth and Fifth Amendments, and went on to stitch together a pseudo- logical framework for legal decision (then using the 14th Amendment) making that is still with us today.

Vagueness as a reason for heavy handed policy is now the Left’s standard. “Because we told you to do it” is the way that is spelled out.

Every professor who taught me constitutional law was a liberal, and every single time any one of them delved into Roe, a smirk was on their face. Lots of eye rolling and chuckling accompanied these professors’ analysis of the poor legal reasoning behind the decision. Which meant to me then, and even more so now, that no one with real constitutional law training believed Roe was a legitimate legal decision based on actual logic, law, and fundamental constitutional principles. Rather, all the liberals who exulted in Roe did so because it backdoor-attained a policy goal they could not achieve through the legislative process, and because it established a mush-headed standard for all future legal decisions.

So today, some fifty years after Roe v. Wade-type legal analysis has wafted its way throughout the legal profession, the courts, and the bureaucracy, we see the ultimate and inevitable result of such a “creative” legal approach: Although the Second Amendment says crystal clearly that citizens may both keep and publicly bear firearms, and that this right shall not be infringed, a zillion policy makers and courts blatantly ignore 2A’s plain wording and just start throwing anti-gun policy ideas into the pot. These judges give no respect to what the Constitution actually says; rather, they use their court rooms purely for writing policies that fit their political views. Same goes for ATF bureaucrats.

I blame Roe v. Wade for where our court system is now. And where it is now is not just political policy shops in black robes, but we have defiant leftist activists in black robes, who simply ignore the Supreme Court’s precedents and make their own damned ruling. Even if their damned ruling is totally contrary to a US Supreme Court decision from just weeks or months ago. This approach is junk law, and it calls into question the entire field of jurisprudence. It highlights in just one more way how the Left is hell bent for leather to implement its political policy goals, at whatever cost to America’s legal and cultural fabric.

In case you don’t know it, when a lower court openly defies the Supreme Court, the entire court system is thrown out the window. We then have nothing but anarchy.

So, when the US Supreme Court overturned Roe v. Wade two weeks ago, it was not surprising to see the Left melt down, as if their ability to kill babies had in fact been fully deprived of them. After all, when a person sees every branch of government as nothing more than a policy shop devoid of logical process, then everything becomes about winning or losing the policy war. Here the Left feels they have lost, when in fact, all this recent Court decision did was turn the issue over to the various states (No, Barack, there are not 57 states). Where actual voters get to choose how they want their state government to address what should be a sensitive subject.

(The same 1960s and 1970s people who had just protested against American soldiers as “baby killers” in Vietnam then became the biggest champions of killing babies…go figure).

To its proponents and supporters, Roe v. Wade was never really about abortion or babies, it was about introducing a weak-minded, unprincipled, grab-what-you-can “by any means necessary” approach to forming government policy. And in fact one of the main reasons I left my US EPA policy job in Washington, DC, was because I personally witnessed many regulations and rules being formed exactly this way, where (liberal/ Left) agency staff would literally just imagine a bunch of shit and put it in the regulation or rule. Justified or no, or extra cost to industry and consumers be damned. It is a terrible way to run representative government. But it is the way that Roe taught liberals and Leftists to think about government.

As a proponent of good government, where transparency and accountability are everyday occurrences for the taxpayers, I am glad that Roe is gone. Now the politically difficult part of democracy is upon all of us: Figuring out how many babies people can kill, when, and where. Based on my principles, I would expect this democratic process to follow a certain logic path. But we are not dealing with principles here, but rather a passion on the Left for absolute control. And they don’t like losing control. Or thinking hard. Or debating issues with evidence and cross-examination and due process.

Should be interesting going forward.