Roe v. Wade — A Precedent to Be Deplored

In his majority opinion in June Medical Services v. Russo, Chief Justice John Roberts wrote: "I joined the dissent in Whole Woman's Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman's Health was right or wrong, but whether to adhere to it in deciding the present case." He then went on at length to defend the legal doctrine of stare decisis, upholding precedent, to support his decision.

In the Spring issue of the Human Life Review, senior editor William Murchison cites another controversial Supreme Court decision, Dred Scott v. Sanford (1857) which denied Scott, a former slave living in a free state, his freedom. "I used to read more comparisons than I do now between Roe and Dred Scott, based on the arrogance inherent in both, the pretense of settling a moral question on purely legal/constitutional terms."

Indeed: In the early days of the anti-abortion cause, Dred Scott was consistently invoked as the shameful precedent to the (1973) Roe v. Wade ruling. In Abortion and the Conscience of the Nation, President Ronald Reagan wrote: "This is not the first time our country has been divided by a Supreme Court decision that denied the value of human lives." Justice Roger B. Taney, issuing the majority opinion in Dred Scott, wrote:

We think ... that [Black people] are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [of America's founding] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. (Dred Scott, 60 U.S. at 404–05)

Dred Scott was never overturned; rather, after the devastating Civil War, it was nullified by the 13th and 14th amendments, which abolished slavery and granted rights to all persons born or naturalized in the U.S., including former slaves.

However, in 1927 another Supreme Court decision — also never reversed — found that the 14th amendment did not apply to some disabled citizens. In Buck v. Bell, the Supreme Court ruled that the compulsory sterilization of the "unfit" and intellectually disabled did not violate due process. Writing for the majority, Justice Oliver Wendell Holmes, Jr. declared: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."

Today, although much progress has been made for the rights of people with disabilities, the eugenic principles reflected in Buck v. Bell — as well as remnants of the racism inherent in Dred Scott — are alive and well. On June 11, Michael Hickson, a 46-year-old, African American man died at the hands of the state. He had suffered a brain injury three years previously and was quadriplegic. The beloved father of five had, said his wife Melissa, "regained his personality, had memories of past events, loved to do math calculations, and answer trivia questions." Yet when he contracted COVID-19, his doctor refused any treatment, telling his Melissa point-blank that because Michael couldn't "walk and talk" (the conversation was recorded, here) he had no "quality of life." The hospital and the state then decided to remove all food and water, dehydrating and starving him to death, which took six days. Hickson's death, "rather than exploding amid our racial-justice moment ... hardly yielded a peep from those who control our national discourse," wrote Fordham Professor Charles Camosy.

Back to precedents: one controversial decision, Korematsu v. U.S. (which supported the internment of Japanese Americans during World War II) while not explicitly overruled, has been effectively disowned by the Court. Justice Roberts wrote (in Trump v. Hawaii, 2018 ) that "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history …"

How will the "court of history" find the Roe decision? Justice Clarence Thomas is clear, in his June v. Russo dissent: "Roe is grievously wrong for many reasons, but the most fundamental is that its core holding — that the Constitution protects a woman's right to abort her unborn child — finds no support in the text of the Fourteenth Amendment."

The Supreme Court's abortion jurisprudence allows for the killing of humans because of age, location, race or ability — a precedent to be deplored.

Maria McFadden Maffucci is the editor in chief of the Human Life Review (www.humanlifereview.com), a quarterly journal devoted to the defense of human life, founded in 1974 by her father, James P. McFadden, Associate Publisher of National Review. She is President of the Human Life Foundation, based in midtown Manhattan, which publishes the Review and supports pregnancy resource centers. Mrs. Maffucci's articles and editorials have appeared in the Human Life Review, First Things, National Review Online, National Review, Verily. A Holy Cross graduate with a BA in Philosophy, she is married to Robert E. Maffucci, and the mother of three children. Her interests include exploring opportunities for individuals with special needs. Read Maria McFadden Maffucci's Reports — More Here.