The Legacy of Roe

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.  -  Anthony Kennedy, in Planned Parenthood vs. Casey (1992)

Forty years ago today, the Supreme Court of the United States issued its landmark Roe vs. Wade ruling.  Though the decision was a predictable step in a long series defending the rights of individuals to be free from state control of their private lives, its slaughter of several sacred cows made it many bitter enemies and it has been assailed as sloppy jurisprudence even by some who actually agree with its conclusion.  This is extremely unfortunate, because if the judgment had been more clearly defined as the natural outgrowth of the founding principles of life, liberty and the pursuit of happiness, and of the constitutional abhorrence of the state exercising undue control over people’s bodies or restricting their personal freedom (as exemplified by the 2^nd, 4^th, 5^th, 6^th, 8^th and 13^th amendments), the anti-sex crowd would have fewer legal avenues by which to challenge the right to abortion, and Roe vs. Wade would have been merely the first of many decisions rolling back unconstitutional 19^th century intrusions into individual lives which would have appalled the Founding Fathers.

The majority of Americans are woefully ignorant of history; perhaps this is a predictable outgrowth of our cultural fascination with progress, because minds mired in dualistic thinking (as most human beings are) tend to abjure, abhor or simply ignore the “opposite” of whatever they believe to be good and admirable.  In other words, it isn’t surprising if a dualistic mentality which has been taught that “newer is better” concludes that the past is not worth knowing about.  I’m going to avoid the obvious Santayana reference because repeating the past is not really the issue here; rather, it’s the woeful lack of perspective.  Have you ever considered why alcohol prohibition was repealed in a mere fourteen years, while prohibition of other drugs has dragged on for almost a century?  It’s precisely because the drive to repeal was launched so soon after the enactment, and took less than ten months from proposal to full ratification.  In 1933 everyone in Congress and virtually everyone old enough to vote could remember the time before Prohibition, and the damage it had done was evident to all but the most delusional.  By contrast, the number of people who can clearly remember the time before widespread drug prohibition is very small indeed; a very large fraction of the population believes that drugs have essentially “always” been illegal, and that governments have routinely inserted themselves into people’s private business since time immemorial.  Similarly, most people believe that abortion, homosexuality, prostitution and other sex-related acts have been defined as “crimes” at least since Moses, when in fact none of these things was typically criminalized until the 19^th century, and not on a massive scale until the early 20^th.

Incalculable damage is done to the principles of liberty by the ignorant but widespread belief that legal prohibition of private behavior is some kind of venerable tradition.  Most humans are naturally resistant to change, and the older they get the more calcified this resistance becomes.  The majority of people find “we’ve always done it that way” to be a compelling argument, and even those who do not may fear sailing into uncharted seas, and thus inclined to “leave well enough alone”.  Were these people to recognize that prohibitionist laws are nothing but a recent (and failed) experiment, and that secular governments in the Common Era did not generally base laws on Judeo-Christian religious teachings, things might be very different.  Certainly, we’d still have the fanatics who believe that “America is a Christian nation” and the “progressives” who believe that people are too stupid to make decisions on their own and must therefore obediently submit to the wise dictates of “experts” enforced at the point of a gun (and implemented through official theft and “corrective” imprisonment).  But these would-be dictators are a minority; shorn of their veneer of “precedent” and “tradition” they would be revealed for what they are: busybody cranks obsessed with other people’s private lives.

It’s not too late, however.  The supporters of human rights and individual liberty need to educate our less-informed brothers and sisters, to point out to them that prohibitionism is a relatively-recent scheme dreamed up by control freaks with the same mentality as those who want to ban soft drinks and censor the internet.  For too long, prohibitionists have dominated the discussion, pretending that those who oppose all the various consensual crimes are some kind of dangerous and wild-eyed radicals who want to plunge the world into chaos by dismantling some ancient edifice of “protections”; opponents of Roe, for example, are fond of saying that the justices “found” or “invented” a right of privacy in the Constitution, when it is obvious to anyone with eyes to see (and a knowledge of 18^th-century history and philosophy to draw upon) that it is not only there to begin with, but clearly implicit in the document (not to mention spelled out in the 9^th and 10^th amendments).  It is prohibitionist laws that are unconstitutional, not rulings (however poorly-worded) which attempt to rectify the violation by removing the offending legislation; though it is rarely recognized as such, this principle (extended by Lawrence vs. Texas and future judgments against other tyrannical invasions of privacy and bodily autonomy) is truly the most important legacy of Roe vs. Wade, and the one for which it will be remembered in centuries to come.