Joe Biden issued a statement from the White House earlier on Tuesday, claiming his administration’s “strong defense” of Roe rested on “a long line of precedent recognizing ‘the Fourteenth Amendment’s concept of personal liberty.'”
He claimed that the “basic fairness and the stability of our law demand that it not be overturned.”
He also called on “our nation’s elected officials at all levels of government to protect a woman’s right to choose.”
Biden and the Democrats are claiming that the conservative majority on the court “ripped up the Constitution” to reach their decision. Indeed, the main argument defending Roe claims that you can’t overturn “precedent.”
But there have been plenty of precedents overturned completely by the Supreme Court.
Biden’s statement meanwhile evokes several common tropes about abortion and Roe, all of which are easily dismantled. Perhaps foremost among them: “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.”
Basic fairness doesn’t require any such thing. This complaint is typical from opponents of overturning Roe, a lazy man’s way out of defending either legal abortion or the decisions legitimizing it. But as anyone with even a modest knowledge of U.S. history knows, the Court has been wrong before, sometime egregiously so — and it has, thankfully, overturned some of its most flawed decisions. Those who insist on keeping Roe for the sake of consistency and predictability have never managed to explain how this argument applies to, say, Dred Scott, Plessy, or Korematsu.
The history of Roe is a classic example of a Supreme Court justice — Justice Harry Blackmon — taking it upon himself to create law and to try to justify it afterward by deliberately misinterpreting the Constitution’s 14th Amendment.
In oral arguments for Roe v, Wade, the state of Texas argued: “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” That language stated that “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws.”
But Blackmon denied that self-evident claim and added: “If this suggestion of personhood [of the fetus] is established, the appellant’s case [pro-abortion] collapses, for the fetus’ right of life would then be guaranteed specifically by the Amendment.”
Biden has no legal reasoning to justify maintaining Roe v, Wade. only “precedent.” When the only justification for bad law is that “we’ve always done it this way,” it’s time to change it.