Roe v. Wade and its progeny represent some of the most controversial Constitutional case law in American history. Recently, the Supreme Court has indicated a slight retreat from its virtual “abortion on demand” precedent over the past thirty five years, drawing accusations of judicial activism or legislation from the bench. Whether these accusations are true or not is irrelevant; if the Court is guilty of legislating from the bench, no case is a clearer example of such behavior than Roe itself.

The Roe majority based its holding on several morally bankrupt positions: the rejection of prenatal personhood, the ignoring of any interests of the unborn, and the arbitrary dictate that an individual’s bodily autonomy is a superior interest to a state’s interest in protecting innocent life.

First, the Roe majority engaged in a lengthy inquiry into when life begins and whether or not a “fetus” is a person. The Court begins by acknowledging that the personhood of a fetus is a dispositive question, for a fetus’ right to live is guaranteed by the Fourteenth Amendment if he is indeed a person. The Court summarily dismisses the possibility of personhood by concluding that since the usage of “person” in the Constitution does not have any explicitly prenatal application, it must not have any prenatal application at all.

The Court, having rejected the personhood of the unborn, then takes up the issue of when life begins, concluding essentially that it does not matter one way or the other. The very way in which these questions were considered indicates an oft-ignored dichotomy between personhood and human life that should cause the astute observer to peer into history and recall the last time the Supreme Court engaged in such semantic gymnastics. By refusing to opine on when life begins and instead acknowledging the possibility that life begins at conception, the Court allows for the existence of an entire class of living human beings that are nonetheless not people desiring of the law’s protection. This smacks heavily of the now-universally reviled logic embodied in Dred Scott v. Sandford. By holding that the Constitution uses “person” and “citizen interchangeably” and yet denying all blacks the rights of citizens, the “Dred Scott Decision” stood for the proposition that an entire class of human beings are nonetheless not people. The logic of Roe is identical. By treating the questions of personhood and life separately and by passing on one question and not the other, the Supreme Court again held that an individual’s humanity alone is insufficient to bestow upon him fundamental civil rights – in this case, the right not to be slaughtered.

Secondly, Roe’s famous holding includes a sliding scale accounting for a woman’s interest in boldily autonomy and the state’s interest in protecting unborn life. Notably absent from the calculus is any indication of a right to live on the part of the unborn. Perhaps the question is rendered moot by the Court’s rejection of prenatal personhood (non-people must not have any legitimate, court-protected interests), or maybe the Court assumed that the state would adequately represent the interests of the unborn. Yet it strikes this writer as morally reprehensible that the highest Court in the land could grant the possibility that a state may have a legitimate interest in protecting even “potential” life while simultaneously ignoring the possibility that the unborn child might have a legitimate interest in not being killed. The reason is relatively clear: it would be impossible to account for such an interest in a sliding scale. When would one individual’s interest in bodily autonomy trump another’s interest in life? Never.

Lastly, the Court’s broad holding, the aforementioned sliding scale, is as arbitrarily applied as it is arbitrarily fabricated. As decided, Roe held that states cannot restrict abortion in the first trimester, they may regulate it in the second only insofar as it is reasonably related to protecting the health of the mother, and may regulate it to the point of total prohibition (except to preserve the life of the mother) in the third trimester. This shift at the third trimester occurs, according to the Court, because this is the point of fetal viability when the fetus could survive on its own outside the mother’s body. It is at this point that the state’s interest in protecting the child’s life suddenly outweighs the mother’s interest in bodily autonomy.

One of the many troubling aspect of this scheme is the fact that the Court’s logic would equally support the opposite conclusion. For example, if the fetus has reached the point of viability, it could be considered capable of protecting its own interests in preserving its life without the need for state intrusion. The Court could just as easily have concluded that at the moment of conception, the state’s interest in protecting fetal life vastly outweighs the mother’s interest in bodily autonomy since the unborn child is at that point in time most needing of protection and the mother’s bodily autonomy is only minimally invaded. As the pregnancy progresses, it becomes more and more of a limitation on the mother’s autonomy and the child becomes stronger and stronger. At some point then, the lines cross and the mother’s autonomy becomes a more compelling interest than the state’s interest in protecting the child’s life and the mother can have the fetus “evacuated” if she so chooses.

The purpose of this opinion is not to argue for the above-suggested approach as it is as equally reprehensible as the one the Court gave us. Rather, the point is that Roe and the cases based on it are based on unsound legal and logical principles and are therefore arbitrary. Like the compassionate people of the 19th century, we look forward to the day when Roe v. Wade is as ineffectual and universally hated as Dred Scott is today.