Minutes after President Donald Trump added Sen. Tom Cotton (R-Ark.) to his list of potential Supreme Court nominees, the senator tweeted, “It’s time for Roe v. Wade to go.” He’s right, and not just because abortion is a heinous evil.
Roe v. Wade (1973) is a notoriously bad Supreme Court decision. In order to make abortion legal, the Court twisted the 14th Amendment out of recognition. Ironically, at the time the 14th Amendment was being ratified, abortion laws were being tightened, not loosened. Furthermore, the plain text of that amendment — which states that no state can “deprive any person of life, liberty, or property, without due process of law” — not only fails to mention abortion but could be used as an argument to defend the lives of unborn babies.
To achieve this ruling, the Court stretched the “penumbras of the Bill of Rights” to include a right to privacy — a legacy of the 1965 contraception case Griswold v. Connecticut — and extended that into a right to abortion.
During a debate last October, Joe Biden was among the Democrats who claimed that three out of four Americans support keeping Roe v. Wade. The Democrats seem to have been referring to an NPR/PBS News Hour/Marist Poll released in June 2019. In that poll, the vast majority of Americans (77 percent) expressed qualified support for Roe v. Wade. Yet their answers were more complicated than mere support for the decision.
The survey asked, “In 1973, the Roe v. Wade decision by the U.S. Supreme Court established the constitutional right for women to legally obtain an abortion. Over time, other laws have expanded or restricted this ruling. Do you think the U.S. Supreme Court today, should decide to: Overturn Roe v. Wade; Keep Roe v. Wade but add more restrictions; Keep Roe v. Wade but reduce some of the restrictions; Expand Roe v. Wade establishing the right to abortion under any circumstance; or Keep Roe v. Wade the way it is.”
While only 13 percent of Americans in the poll said Roe should be overturned, 26 percent said they want more restrictions on abortion. About one-fifth (21 percent) said they want to see Roe expanded to make abortion legal in any circumstances, while 14 percent said they would keep Roe and reduce restrictions on abortion. Only 16 percent said they would keep Roe the way it is, while 11 percent said they were unsure.
Yet another Marist poll, this time conducted in junction with the Knights of Columbus (KoC), found that most Americans would effectively support overturning Roe and allowing states to make their own laws on abortion. The poll asked respondents, “Which comes closest to your view of what the Supreme Court should do when it reconsiders Roe v. Wade, the 1973 ruling making abortion illegal in the United States?”
Most Americans either wanted the Court to make abortion illegal (16 percent) or to “allow states to make certain restrictions” (49 percent). Both of these outcomes would effectively overturn Roe v. Wade. Less than a third of Americans (30 percent) said abortion should be “legal without restriction.” Another 6 percent admitted they were unsure.
Democrats point to the one poll and say, “77 percent of Americans support Roe!” while conservatives can point to the second poll and say, “65 percent of Americans support overturning Roe so states can make their own laws on abortion.”
Although more Americans identify as “pro-choice” than as “pro-life,” more than three-quarters (76 percent) say abortion should only be legal within the first three months of pregnancy; or in cases of rape, incest, or a threat to the life of the mother; or only to save the mother’s life; or never a all. Even 60 percent of “pro-choice” Americans agree with these restrictions, as do 61 percent of Democrats, according to another Marist poll. Only 12 percent support the idea that abortion should be legal at any time during pregnancy.
When Democrats pass laws to “codify Roe v. Wade,” they include provisions similar to a broader view of abortion established by Supreme Court decisions after Roe. For instance, New York’s radical abortion bill legalized abortion throughout all nine months of pregnancy — even after 24 weeks, so long as “the abortion is necessary to protect the patient’s life or health,” with a wide interpretation of “health.” The law also removed protections for wanted babies.
According to a KoC/Marist poll conducted shortly after the bill was signed, New York State residents oppose allowing abortion during all 9 months of pregnancy. Most New York residents (79 percent) support some restrictions on abortion: 13 percent say it should be limited to the first six months of pregnancy; 26 percent say it should only be allowed during the first three months; 22 percent would restrict it to cases of rape, incest, or to save the life of the mother; 9 percent would allow it only to save the life of the mother; and 9 percent would never permit abortion in any circumstances.
If New York’s law represents “codifying Roe v. Wade,” most Americans disapprove.
Sen. Elizabeth Warren (D-Mass.), then a presidential candidate (and Tom Cotton’s constitutional law professor), did make one powerful argument against Roe v. Wade, even though she meant to argue for it.
“We should not leave this to the Supreme Court, we should do this through democracy,” Warren said, referring to passing a law through Congress and having it signed by the president. Abortion is one of the major areas of American law where the Supreme Court has effectively made law, usurping the authority of Congress and the president.
For this reason, Roe v. Wade should be overturned. If the states and the American people want to put a woman’s right to an abortion into the Constitution, there is an amendment process for that. If the American people want laws like New York’s radical abortion law, codifying Roe v. Wade and even more radical Supreme Court decisions, Congress has the power to do that. The Supreme Court shouldn’t have usurped it in the first place.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.