Roe v. Wade decision: The ending is not the end

By Chen Zhihao and Song Lijue
0 Comment(s)Print E-mail, July 4, 2022
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Protesters gather outside the U.S. Supreme Court in Washington D.C., the United States, on June 24, 2022. [Photo/Xinhua]

The U.S. Supreme Court overturned Roe v. Wade on June 24, upsetting decades of precedent and ending all federal protections on abortion. The reverse was like a bombshell, causing an uproar in American society, reigniting the social mobilization between Pro-Choice and Pro-life organizations, and drawing attention back to the Roe v. Wade debate of half a century ago. 

One of the primary reasons why Roe v. Wade is so controversial is that the decision is precarious in its reasoning, as the case chose a unique route based not on the history, tradition, and precedent of abortion law but directly on the right to privacy. As Justice Alito argued, the Roe v. Wade decision does not pay enough attention to constitutional text, history, tradition, and precedent nor provides sufficient analysis. 

The U.S. Supreme Court's decision has also reminded many of the late Justice Ruth Bader Ginsburg, who had expressed her concern that the case would one day be overturned. Justice Ginsburg was stunned by the lack of caution in the Roe v. Wade ruling of 1973 that legalized abortion. Though she indeed approved of the outcome, she was troubled that the focus of Roe was on the right to privacy rather than women's rights. As she rhetorically asked at a 2013 University of Chicago lecture, "Roe isn't really about woman's choice, is it?" Reform, as she preferred, should have come through state legislatures, where it was slowly starting to appear.

Justice Alito and others are criticizing not the privacy of the decision per se; they deny the American constitutional tradition of respect for the choice of abortion. This retrial of Roe v. Wade is to determine whether the right to abortion can be read out of the U.S. Constitution's text, history, and tradition. This particular issue is rooted in the American judicial tradition, not a general theoretical discussion. In other words, this decision is a critique of methodology, not a dispute of opinion. 

However, the choice to overturn Roe fifty years later is as controversial as the 1973 case. Just as many scholars argued, the impact of the Roe v. Wade has been far beyond abortion to promote social change in many areas, including sexual orientation, occupation, social class, gender, race, disability, and other dimensions of discrimination. Even right-leaning groups invoked Roe's right to choose, but with a different plan: to attack government interference in consumer protection, social welfare, racial justice, and other aspects of American life. 

The landmark reversal raises a moral question. While the call to overturn the case has been going on for decades, did Americans miss the best timing to change this jurisprudence? Does the change outweigh the social consequences of not changing it at all? 

Chen Zhihao is a Ph.D. candidate at the School of Political Science and Public Administration, East China University of Political Science and Law. Song Lijue is an associate professor with the School of Foreign Studies, East China University of Political Science and Law.

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