“The Court has never explained or justified its ‘health’ exception after viability, and that too rested on the factual assumption that ‘abortion was safer than childbirth.’”
Americans United for Life (AUL) senior counsel Clarke Forsythe has drafted an opinion that could be used to overturn Roe vs. Wade. You can read the entire opinion piece here.
Here are a few key points:
- “There is no reliable historical evidence that abortion was ever considered a right—in contrast to a crime progressively prohibited as medical knowledge allowed—at common law, or at the time of the U.S. Constitution in 1787, or at the time of the debate and adoption of the Fourteenth Amendment.”
- “Roe v. Wade is forty-five years old, but we have overruled decisions of much longer duration. We overruled Plessy v. Ferguson after fifty-eight years in Brown v. Board of Education.”
- “Roe is undoubtedly the most controversial decision of the modern era, perhaps since Dred Scott.”
- “On virtually every factor of stare decisis that we have considered, the factors strongly weigh in favor of overturning Roe v. Wade and Doe v. Bolton and returning the abortion issue to the democratic process, where virtually all other public health issues are decided, and where the abortion issue had been decided since colonial times. The only reasons for retaining Roe are policy reasons, and the policy reasons are as accessible to the American people, and to members of Congress or state legislators, as they are to judges.”
- “Two of the justices who originally joined Roe subsequently recanted in whole or in part and virtually every abortion decision since Harris v. McRae has been closely divided.”
- “The development of our abortion law doctrine has been haphazard from the beginning, starting with Roe. This Court did not actually hold in Roe that abortion was a ‘fundamental’ constitutional right.”
- “Roe’s major premises—the historical assumptions about abortion, the prohibition of health and safety regulations in the first trimester, the deference to ‘medical judgment,’ the strength of the state interests, the viability rule, the health exception after viability—were based on an unreliable medical assumption.”
- “The Court has never explained or justified its ‘health’ exception after viability, and that too rested on the factual assumption that ‘abortion was safer than childbirth.’”
- “Roe was premised on the assumption that legalization of abortion would end ‘the back alley butchers’ and allow abortion to be treated as ‘a medical procedure… governed by the same rules as apply to other medical procedures… with reasonable medical safeguards.’ Repeated and continuing scandals involving clinics and providers have contradicted that assumption. Most abortions today are not performed by doctors from the Mayo Clinic or by a woman’s ‘own doctor.’ Abortion is largely separated from the rest of obstetrical and gynecological care and practice. Abortion does not involve the medical judgment that Roe assumed. In more than 90% of cases, abortion is not a medically-indicated procedure; it is an elective procedure chosen for social reasons. A small percentage of doctors do abortions. American medicine has largely abandoned abortion.”
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