The problem with Roe v. Wade

[On June 24, 2022, the Supreme Court of the United States officially overturned the January 22, 1973, decision by the same body. This opinion, which I authored in 2009,  explains my reasons for believing that this was an appropriate decision.]

Whether you are for or against abortion rights, you should be against Roe v. Wade. Why? Because Roe v. Wade is a perfect example of the danger that judicial activism poses to the integrity of the U.S. Constitution. It is claiming to find something in the Constitution that just isn't there. Where in the Constitution is there a protection of personal individual freedom with regards to medical decisions, parental decisions, or even prohibition against murder? Nowhere. These matters are to be decided by elected legislatures, not appointed judges. If a legislature wants to make it legal for a woman to kill her child during pregnancy because the pregnancy has medical implications for the woman, that is within the powers granted by the Constitution. I don't like it, but I recognize it. If a legislature wants to make it legal for a woman to kill her child during or after pregnancy because she has special right to determine the fate of her own offspring, that is within the powers granted by the Constitution. I don't like that, either (in fact, it is a downright scary proposition), but I recognize it. If a legislature wants to make it illegal for a woman to take the life of an innocient human being that is too young to care for itself or possibly even too young to live outside her womb, that is within the powers granted by the Constitution. I happen to like that, because it recognizes the intrinsic value of all human life. Instead, though, the judicial system in this country has decided that it is not for the legislature to decide whether a woman can or cannot make these decisions. Instead, the courts have decided that regardless of what the people or the legislatures of the various states may think, a woman can kill her child at any stage of development as long as it is still within her womb and not yet "viable" to be able to live outside the womb or even if the child is "viable" as long as the mother's life was at risk (which is easy to rationalize), and they have done so without any language in the U.S. Constitution to support that view. What part of the Constitution is used to justify this claim? It is the "right of privacy" that is derived from the "due process" references in the 5th and 14th amendments, with the 14th amendment being cited specifically. Here's the text of those amendments:

5th Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 14th Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Now, the 5th Amendment is designed to give basic protections in the legal process. Abortion is clearly out of context. The part that is considered relevant by the courts is where it says "No person shall be ... deprived of life, liberty, or property, without due process of law ...." So, is the "liberty" of the mother more important than the "life" of the child? The 14th Amendment was specifically intended to grant basic rights to African Americans after the Civil War that were already available to other Americans. Abortion was not one of those rights, as most states had prohibitions against abortion, and common law prohibitions were recognized almost universally. The part that is considered relevant by the courts is where it says "...nor shall any State deprive any person of life, liberty, or property, without due process of law ..." So, again, is the "liberty" of the mother considered more important than the "life" of the child? In both cases, the protection against being deprived of "life, liberty, or property" is in the context of requiring "due process of law." The due process of law referred to in those two amendments are personal rights regarding how the legal process plays out so that a person is treated fairly, humanely, and reasonably during the process. It is not referring to which particular activities a person has the right to engage in. The legislature can pass any law they wish (under the watchful eye of the people that vote), except those specifically prohibited by the U.S. Constitution (and in the case of state and local laws the relevant state constitution). Abortion laws are not specifically prohibited, nor are other laws that invade a person's privacy in ways not specifically outlined in the Constitution. If you believe the Constitution should protect a person's right to privacy with regard to medical decisions, parenting, or other areas of life not protected by the Constitution, then please start a movement to amend the Constitution under the rules provided therein. Don't just make up a law out of thin air and then try to justify it by weaving intricate webs of rationalization that go well beyond the intent of the original framers of the Constitution or authors of the particular amendments. Our Constitution is the foundation of our democracy and the reason that our country has been historically strong. The more we undermine its authority, the weaker our country becomes.