Why Roe is Doomed

The nomination of Brett Kavanaugh to the Supreme Court by President Trump has certainly caused quite a bit of raucous lately. And it seems that this nomination has resurrected the abortion debate in the United States, a discussion that has been brewing just below the surface for decades. Let’s be clear, Roe is most certainly doomed, but it is not because of some frat boy named Brett being nominated to the Supreme Court. No, Roe’s ultimate demise will actually be caused by the pro-abortion movement themselves. Without question, the seeds to Roe’s ultimate undoing can be found in their favorite slogan, “It’s My Body”. I’ll explain, but first a little history is in order.

Roe vs. Wade is one of the most, if not the most, landmark cases in recent Supreme Court history. But, for as much as Roe has been discussed and debated since 1973, the year the Supreme Court handed down the decision, there is a surprising lack of general knowledge about the actual case. Never fear, it is fairly easy to come up to speed. In short, if one is objective about the matter and uses scholarly language, then Roe can be described as being a weak ass, horrifically conflated, piss poor decision made on a complete and utter shit show of a case. No, really, it’s almost kind of tragic just how bad the legal opinion was and the clownish circumstances that surrounded the case. For such a landmark decision, one would expect more…much more. And no this is not exaggeration, it’s actually a rather nice way of describing the case.

Let’s just start with the individual that started the case, one Norma McCorvey, otherwise known as “Jane Roe” in court papers. Ms. McCorvey was born Norma Nelson and is an individual who had trouble with the law at an early age. Like, at age 10, when she robbed the cash register of a gas station and ran off with a female friend to Oklahoma. That was when she was 10. Without belaboring this rather unusual childhood, eventually, Ms. McCorvey married at the age of 16, divorced, gave birth to her first child out-of-wedlock, developed a serious drinking problem and ended up abandoning her first child, Melissa, who was subsequently taken away from her in 1965. Despite being an avowed lesbian, Ms. McCorvey had a second child that was put up for adoption in 1966/1967. But it was with her third pregnancy that she would make history, so to speak.

In 1969, at the age of 21, Norma McCorvey; an avowed lesbian, became pregnant with her third child and returned to Dallas TX. McCorvey initially falsely claimed that she had been raped in the hopes of attaining a legal abortion exemption under Texas law. She later admitted that her story was a complete fabrication and sought to obtain an illegal abortion. However, the illegal abortion clinics had been closed by authorities. Eventually, two female attorneys who were specifically looking for cases involving women seeking abortions convinced Ms. McCorvey to file a lawsuit that eventually became Roe vs. Wade. So, obviously a poster child for women’s “rights”.

Now, the part of the story that almost nobody knows; I mean other than everything written above, is that Ms. McCorvey actually had the child that was at the center of Roe. vs. Wade. The child was not aborted but rather was put up for adoption, just as Ms. McCorvey’s second child. Perhaps even just as amazing, in the three years that it took to bring the case before the Supreme Court, Ms. McCorvey never appeared in court a single time.

Despite the fact that under the normal rules of standing and mootness the case would not generally have been heard by the courts or would have resulted in what is called an “advisory opinion”, that’s not what ended up happening. While Jane Roe’s appeal was moot because she had already given birth and thus would not be affected by the ruling and as such lacked standing to assert the rights of other pregnant women, the court allowed the appeal based upon a rather obscure exception phrased “capable of repetition, yet evading review”.

So…after all of this, the Supreme Court eventually hands down a decision in 1973 that decides in favor of Roe based upon the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (emphasis added)

But, what do the Ninth and Fourteenth amendments actually say? Nobody ever bothers to look that up. Luckily, you don’t have to. The Ninth Amendment says this about abortion:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Here’s the issue with using this as a basis for finding a “right” to abortion. Hundreds of years of judicial and scholarly research agree that the Ninth Amendment does not confer any actual rights. As Professor Laurence Tribe has noted: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights’. The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”.

OK, so surely the Fourteenth Amendment has much more to say on the subject of abortion. To wit the text of the Fourteenth Amendment to the Constitution states:

“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”

Let’s do these in reverse order and see which of these sections mentions privacy or abortion. Section 5, nope. Section 4, nope. Section 3, nope. Section 2, nope. Section 1, nope. You see, the context of the Fourteenth Amendment is that it was adopted in 1868 as one of the Reconstruction Amendments following the United States Civil War. The reason it exists is to address issues related to the equal application of the law related to former slaves. The Fourteenth Amendment has nothing, zero, zilch, nada to do with privacy or abortions. It’s a pure fabrication by the court.

OK, so that’s the history of Roe. It’s important to keep things in context here and actually know what you are discussing or have an opinion about. So, bad decision or not, the real question becomes, should the government be all up in your uterus with regards to whether or not you should be able to get an abortion. Now, to some degree, even with Roe, they are all up there and everything because the courts still allow abortions to be banned when the fetus is “viable”. But before that, should it be the government’s business? Well, probably not. However, if the pro-abortion movement gets its way and your body truly becomes “yours”, well then we have a major problem.

You see, when pro-abortion rights activists say “It’s my body”, they are evoking a statement that their body is, well; “theirs”. Essentially, the argument is that an individual’s body is that person’s property and that individual owns it. Except that, technically, your body isn’t your property, it’s a little more vague than that. You see, while suicide has been decriminalized in most states in the United States, you still can’t just go out and sell one of your kidneys to the highest bidder. Your body is not technically your property to do with what you will. But, many argue that it should be, that your body should be considered your exclusive property, particularly when you start talking about DNA.

Today, if someone gets my DNA genome, they could post it online for the entire world to see and they would technically not be violating any laws. But with the advent and rapid proliferation of DNA testing facilities where in their terms and services they claim a form of ownership over your submitted DNA, this issue of ownership is going to come to a head in the courts; quite probably the Supreme Court, sooner rather than later. And this is where the pro-abortion movement may have wished they would have chosen a different slogan.

Think about it, if your body actually truly becomes your property and since DNA is part of your body, well then “Houston, we have a problem”. Specifically, that problem is that the fetus growing inside a woman; that said woman wishes to abort, is technically no longer entirely her property. I know, what?!? Well, think about it, it is really only HALF her property, DNA-wise that is.

Now, I grant you, for people that do not understand the biology inherent in having babies this may come as quite a shock but babies actually have half of the DNA of EACH parent. A baby’s unique DNA consists of half of the unique DNA of the mother and the other half…drum roll…is the unique DNA of the male donor. Thus if DNA becomes property, well, then that baby is partially the male donor’s property as well. And at that point, Roe is pretty much done. Stick a fork in it, good night, game over, thanks for trying out.

So ultimately, Roe is doomed. There is no way that DNA does not eventually get ruled as property of an individual. So it will be an odd end to the abortion discussion but an end none-the-less and; God forbid, the utterly ignored concept of MEN’s rights (read fathers) will finally actually get its due.

Published July 24th, 2018