Why Roe v. Wade Should Be Overturned

Why Roe v. Wade Should Be Overturned

Pro-life conservatives have mixed feelings about President Trump’s nomination of D.C. Circuit Court of Appeals Judge Brett Kavanaugh to replace the retiring Associate Supreme Court Justice Anthony Kennedy.

This will be Trump’s second appointment of a Supreme Court justice. After Trump was inaugurated in January 2017, he nominated Neil Gorsuch—of the Tenth Circuit Court of Appeals—to replace the deceased Antonin Scalia. Gorsuch was confirmed by the Senate on April 7, 2017.

Kennedy’s announced retirement (effective July 31) has terrified liberals and thrilled conservatives. Liberals fear that Kennedy’s replacement will join with justices Thomas, Roberts, Gorsuch, and Alito in overturning the infamous Supreme Court case of Roe v. Wade (1973) that federalized abortion on demand. Conservatives anticipate that Kennedy’s replacement will do so.

Or at least they did until Trump nominated Brett Kavanaugh.


Liberals are still very much afraid. Nancy Pelosi warned that Kavanaugh could destroy Roe v. Wade and women’s rights. Former Planned Parenthood president Cecile Richards stated: “The balance of the Supreme Court is at stake. We cannot allow it to be tilted against the constitutional right to abortion. The rights and health of generations of people are at stake.”

Conservatives are somewhat disappointed in Kavanaugh, especially because of what he said about Roe v. Wade at his 2006 confirmation hearing after being selected to serve on the D.C. Circuit Court of Appeals. Kavanaugh was asked by Sen. Chuck Schumer: “Do you consider Roe v. Wade to be an abomination?” He replied: “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Court. It’s been decided by the Supreme Court.” But as has been pointed out, Kavanaugh was dodging the question.

There is no question that Roe v. Wade should be overturned, but the reason why has nothing to do with abortion.

Let me explain.

First of all, as a Christian and a libertarian, I believe that abortion is a heinous practice. I don’t see how anyone who calls himself a Christian or a libertarian can support a “woman’s right to choose” to kill her baby. The Christian case against abortion should be self-evident. Regarding the libertarian case against abortion, I have argued elsewhere that because the non-aggression axiom is central to libertarianism, and because force is justified only in self-defense, and because it is wrong to threaten or initiate violence against a person or his property, and because killing is the ultimate form of aggression that, to be consistent, libertarians should be opposed to abortion.

Second, murder, rape, torture, child abuse, and assault and battery are also evil things, but this doesn’t mean that the federal government should have laws against these things. The federal government should not have anything to do with abortion for the simple reason that it should not have anything to do with the majority of what it is currently involved in, and especially crime fighting. That is part of the police power of the states. This is because the United States has a federal system of government. As James Madison—the Father of the Constitution— described so eloquently in Federalist No. 45:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

Third, Roe v. Wade was wrongly decided. As former congressman and Republican presidential candidate Ron Paul has explained:

Roe was wrongly decided because abortion simply is not a constitutional issue. There is not a word in the text of that document, nor in any of its amendments, that conceivably addresses abortion. There is no serious argument based on the text of the Constitution itself that a federal “right to abortion” exists. The federalization of abortion law is based not on constitutional principles, but rather on a social and political construct created out of thin air by the Roe court.

Under the 9th and 10th amendments, all authority over matters not specifically addressed in the Constitution remains with state legislatures. Therefore the federal government has no authority whatsoever to involve itself in the abortion issue. So while Roe v. Wade is invalid, a federal law banning abortion across all 50 states would be equally invalid.

Roe v. Wade should be overturned because it violates the Constitution.

Roe v. Wade should be overturned because it violates the principle of federalism.

Roe v. Wade should be overturned because it violates the Tenth Amendment.

Roe v. Wade should be overturned because it was wrongly decided.

Abortion has nothing to do with it.

If Roe v. Wade were overturned, it would not end the monstrous crime and national sin of abortion.

If Roe v. Wade were overturned, abortion laws would once again be up to each individual state.

If Roe v. Wade were overturned, abortion opponents would have to focus on state legislatures instead of the U.S. Congress.

If Roe v. Wade were overturned, it would still be up to pro-life individuals and organizations to persuade women not to have abortions.

Assuming that he is confirmed by the Senate to be the newest associate justice of the Supreme Court, will Brett Kavanaugh help to overturn Roe v. Wade? He might. Will he do it for the right reason? I’m not holding my breath.