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r/VeryBadWizards • … • u/Mr_Deltoid

Can I be For Abortion but Against Roe V Wade?

I'm no lawyer, but I've read a fair number of lawyerly critiques from both the left and right that agree: the legal arguments against the constitutionality of Roe v Wade are reasonable and twofold. First, the right to privacy that Roe claims the constitution enshrines is somewhat suspect. And second, the claim that abortion falls under this alleged right to privacy is also suspect.

(The reason Roe followed this route was because of a previous ruling that recognized the right to privacy vis-a-vis the use of birth control. But abortion and the use of birth control are very different. Ironically, there was another pro-abortion case being litigated at the same time, one that most legal scholars agree was on stronger footing. But when the Court ruled on Roe, this stronger case became moot.)

I do think that the right to abortion falls under the general category of "liberty," and should therefore be protected. But I'm not convinced that the right to "privacy" is on solid footing, nor is the claim that abortion is a "privacy" matter, as is the use of birth control.

So what's the best course of action for the pro abortion side? Relying on the Court to change its mind about Roe v Wade by increasing the number of pro-abortion Justices seems like a losing proposition to me, like using the Court to "legislate from the bench." Better to challenge bans on abortion using some other, stronger argument, while simultaneously using the issue to elect pro-abortion legislators at the state level. The issue seems likely to be an albatross around the Republicans' neck since most people are for abortion, at least up to a point.

As I like to say, never underestimate the ability of both parties to shoot themselves in the foot. The Democrats have been doing this in spades since the election; now it's the Republicans' turn. State-level abortion bans will likely end up being Pyrrhic victories come future elections.

Abortion seems to me like a case of two rights being in conflict with each other: the right to liberty vs. the right to life. If I were Emperor, I'd make abortion legal for the first trimester, illegal in the third (with exceptions for certain circumstances), and leave it up to the states to determine the exact cutoff during the second trimester. That seems like a reasonable compromise to me.

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