The case of Roe v. Wade has been cited, as a landmark
case in the United States Supreme Court that has be instrumental in the
establishment of abortion rights for women. After the cases Eisenstadt v. Baird and Griswold v. Connecticut, the court had
established the right to privacy, which had translated into the right to
contraceptives. Because abortions can be considered a form of contraceptive by
the state, the right to privacy had turned into the right to an abortion, which
could only be regulated if there was a “compelling state interest.” However, scholars
and constitutional law professors alike have agreed that the ruling was
over-reaching and a heavy-handed judicial intervention that was difficult to
justify and has caused more conflict than solved and to a point, I can see what
they mean.
The first problematic part of the ruling of Roe v. Wade was the use of the
established “compelling interest” of the state. By using this requirement as
the basis of the ruling, many fear that the court will move to act more like a
super legislature. In his dissent, Justice White said “In my view, its judgment
is an improvident and extravagant exercise of the power of judicial review that
the Constitution extends to this Court.” As an over-sweeping ruling, Roe v. Wade gave opponents of abortion
access a symbol to target. The opposition built momentum and strength after the
decision and developed strong state-by-state campaigns that actually increased
restrictions on the right to have an abortion in many areas of the nation.
A common criticism of the ruling, which focused on the
right to privacy, is that the foundation of the ruling did nothing for the
progress of women. The right to choose has helped advance women in our society
by keeping them in the work force and allowing them to have options regarding
parenthood. However, the ruling itself only mentioned “the liberty protected by
due process [that] covers more than those freedoms explicitly named in the Bill
of Rights” in regards to the right to privacy. Without mentioning the right of
a women to make reproductive decisions on her own due to the liberty of her own
body, this ruling was not as helpful in the advance of women’s rights as it
should, and could have been.
Finally, the ruling of Roe v. Wade was not handled well, according to scholars, because it
was not in the political will for the judicial branch to handle this question.
Many scholars, judges, and professors have agreed that Roe v. Wade and the issue of abortion rights would have been handled more smoothly and effectively in the
political system through legislative and executive processes. As Justice Ruth
Bader Ginsburg, one of my most trusted beacons in the political world, has said, “The court can put its stamp of approval on the side
of change and let that change develop in the political process.” Justice
Ginsburg, as many others have, advocates for “judicial restraint” as a more
effective means for change than expansive, aggressive decisions. I'm not sure if the political systems would have made the necessary progress or if this step was inevitable.
