In recent days, due to the appointment of Samuel Alito to a lifetime of service on the Supreme Court there has been much talk about the Roe v. Wade decision which legalized abortion. Those on the left and those on the right have been whipped into a frenzy over whether it can, and will, be overturned due to the new, more conservative nature of the court. I thought it appropriate to weigh in a little bit.
As we think about overturning the Roe v. Wade decision it’s vital that we understand that the decision will not come down to whether or not the judges are pro-life/pro-choice. There are accusations on both sides claiming that “activist” judges are going to ruin the law. In reality, Roe. v. Wade is in many respects not about abortion at all. When Roe v. Wade came down the decision was actually about a constitutional right to privacy. The majority of judges decided that the restriction of abortion is an infringement on our right to privacy which goes beyond the bounds of constitutional law. This, in my opinion, is the greatest act of activist judges yet seen on the bench.
I say all this to say that if, and when, Roe v. Wade is overturned don’t rejoice or be angry about “activist” judges. If it is overturned it will not be because of crusading judges, but it will rather be as a result of judges who are strict “constructionist’s” who take a very literal approach to interpreting the constitution and who believe that the Roe v. Wade decision is a poor attempt to ascertain the meaning of the original authors. If and when it is overturned it will be because people are attempting to be much more careful in simply stating what the constitution says and not crusading in an attempt to read into it what they would want/prefer. In the long run we are going to be better as a country, not because Roe v. Wade is overturned, but because our Supreme Court is no longer full of activist’s but rather full of literalists who do not try and take liberty with the constitutional text. For that I am thankful.