Roe v. Wade’s Implications on Law as a Whole

         My daughter is finishing up her first year of law school this week. 31 years ago, I was doing the same thing. I hated that first year of law school. The second and third years were not much better.

         I am grateful I forged ahead, though, because I love what I get to do these days. The law fascinates me. Listening to people’s stories and helping them navigate difficult parts of their life journeys is so satisfying for me.

         The law is more art than science. It is nuance and feel and essence. The answer is not always clear. Competing interests always must be balanced. It is challenging and beautiful at the same time.

         I wish that it were not partisan. I wish that it were not used as a form of outrage entertainment. Law and justice are the most essential elements for a fully functioning civil society.

         Last week, somebody leaked a draft of the Supreme Court’s much-anticipated decision regarding a Mississippi statute that seeks to restrict the opportunities for pregnant women to obtain an abortion.

         In 1973, the Supreme Court in Roe v. Wade determined that the Constitution contained a right to privacy that supported a woman’s right to obtain an abortion. Because the right was determined to be ingrained in the Constitution, no state or federal law would be allowed to abridge that right.

         Of course, since then battle lines were drawn over the moral, ethical, and legal issue of abortion, and the matter has defined our politics for most of our lifetimes. Over the years, states have sought to restrict access to abortions, and many states have been successful in doing so. Slowly the unfettered right to abortion on demand has been whittled away in many states in the union, particularly in the south and Midwest.

         The issue is regional, and partisan, and religious. The arguments for and against are charged. There is no middle ground, and therefore there cannot be universal satisfaction.

         Justice Alito’s draft opinion, if it ultimately becomes the majority decision of the court, will eliminate the court’s prior decision in Roe that created a constitutional right to abortion. It will not outlaw abortion. It will not make abortion illegal in the United States.

         But it also will not prohibit states or the federal government from passing legislation that expands or limits a woman’s right to obtain an abortion.

         Last week’s news cycles made for great ratings and great outrage entertainment. But the court’s draft opinion, like the jurisprudence over the issue of abortion for the last fifty years, is far more nuanced than the news and the tweeters would have you believe.

         I worry about the erosion of individual rights by a politicized court. And my preference is always for greater freedom for the individual, not lesser. To the extent that the court might be moving in a direction that limits individual freedoms, I would pay attention.

         My concern is also rightly placed that it is problematic for courts to modify lasting precedents that the people have come to rely upon for generations. We make decisions every day based on our understanding of the law. When courts can brush aside precedents with the stroke of a pen, it creates uncertainty which can lead to instability not only in the law, but also in the markets, and in domestic and international relations.

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