Regardless of your stance this was a flawed decision and it is in fact “bad law”.
Justice Harry Blackmun invented the ‘trimester’ framework and admitted that it was arbitrary.
Yesterday marked the 43rd anniversary of the Supreme Court decision in Roe v. Wade, which established a woman’s constitutional right to an abortion and made unconstitutional most state efforts to regulate abortion practices. The ruling rested on incredibly shaky legal reasoning, as the seven justices in the majority manufactured a mysterious “right to privacy,” discovered in the due-process clause of the 14th Amendment, to establish a woman’s right to choose abortion. In addition, in the majority opinion, Justice Harry Blackmun found that “the word ‘person’, as used in the Fourteenth Amendment, does not include the unborn,” plausibly the most flawed legal argument since the dehumanizing decision in Dred Scott v. Sanford.
Even aside from these fundamental weaknesses, the details of how the case played out in court are often obscured by the pro-abortion-rights movement. If more Americans were aware of these little-known facts, more might oppose Roe and give credence to arguments in favor of unborn life.
First, many Americans do not understand the legal ramifications that would occur if Roe were to be overturned. Though most Americans oppose overturning it, data indicate that many do so because they that believe that, in the absence of Roe, abortion would be outlawed nationwide. In reality, if the Supreme Court were to overturn some or even all of Roe, the question of abortion would return to the states, allowing state governments to establish permissive abortion laws or to regulate abortion to protect the unborn. As state laws currently stand, nearly all would permit abortion at least until the 20th week of pregnancy; it would require a federal law or constitutional amendment to make abortion illegal in all 50 states.
Furthermore, the decision in Roe did not create an absolute right to abortion. Instead, it held that government restrictions on a woman’s right to abortion must be subject to strict scrutiny, the highest possible standard of judicial review. It also permitted states to regulate abortion later in pregnancy, except in cases of rape, incest, or the mother’s health. Some of our current slate of expansive abortion rights comes also from two other Supreme Court cases: Roe’s companion case, Doe v. Bolton (1973) and Planned Parenthood v. Casey (1992).
While Roe permitted late-term abortion to preserve the life or health of the mother, Doe defined a mother’s health expansively, as determined by “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.” Under this logic, doctors are able to justify abortion in practically any instance, as any woman who might experience emotional strain or mental discomfort as the result of the pregnancy would be legally entitled to the termination of it. Casey offered the Court an opportunity to overturn Roe, but instead it reaffirmed the 1973 decision in the face of challenges from state law, arguing primarily that the country would be legally and economically destabilized if the ruling were reversed.
Perhaps the Court would not have been so determined to uphold Roe if it had more seriously considered the fundamental flaws in that original decision. One prominent abortionist involved in the case, Bernard Nathanson, later admitted that he and fellow abortion proponents in the medical field cooperated to falsify statistics on the number of illegal abortions and maternal deaths in the decades preceding Roe. When Nathanson later realized the horror of abortion and quit the practice, he explained publicly how he and other key individuals used the false information to convince the Court that legalizing abortion would be safer than allowing it to continue illegally.