A codified Roe first requires the constitutional right to privacy, former AG explains
With the decision from the U.S Supreme Court to overturn Roe v. Wade and remove federal protections of abortion rights, many are left wondering how this happened with these protections that have been in place for over 50 years.
Rob McKenna, former Attorney General and Republican gubernatorial candidate in 2012, went on Seattle’s Morning News to speak with Dave Ross and Colleen O’Brien to talk about the decision from a legal standpoint.
One of the reasons Justice Samuel Alito wrote the court majority opinion in the case cited “even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.” In essence, the six concurring justices made the argument that because there was no concrete right to privacy, only an implied one, based within the 14th amendment the Supreme Court could not confer rights to abortions.
“The argument that Alito and others have been making for a long time is that it’s dangerous for the federal courts to create rights that didn’t exist,” McKenna said. “There is a way to create new constitutional rights, it’s amending the Constitution.”
Many have brought up the issues that this brings to other court decisions decided on the same precedent of a right to privacy, including Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. These other court decisions protect the right to contraception, the legality of same-sex intimacy, and same-sex marriage.
“On the other hand, in the history of the country was construed to be a marriage between a man and woman. So it also could be at risk. therefore, I think people who depend on rights found in privacy, you’re properly concerned about where the court goes from here.”
Many critics on both sides of the aisle have long since taken issue with the original ruling on Roe, citing many of the same issues of precedent that are found in the Supreme Court’s decision. In her time before becoming a justice of the Supreme Court, Ruth Bader Ginsberg said that “the court ventured too far in the change it ordered,” despite being the American Civil Liberties Union head of the Women’s Rights Project and supporting legal abortions.
“I would support [an amendment guaranteeing a right to privacy.] But you know, it would get tangled up in the abortion issue. Why? Because in Roe v. Wade, they decided to ground the right to an abortion in this concept of privacy. If they hadn’t done that, it might not be so controversial.”
Because of the shaky precedent, it has been built on, Roe has been overturned, and the next step to protecting abortion rights in America is to codify it into the constitution as an actual right, according to McKenna. This has its own challenges, with Constitutional amendments being relatively rare. There have been a total of 17 amendments (plus the original starting 10) in the 233 years since the constitution was ratified, and a new one would require either a supermajority in congress or to be passed in three-quarters of state constitutions.
According to a study done by the Pew Research Center, 61% of Americans support legalizing abortion in all or most cases, while 37% think that it should be illegal in all or most cases.
“Will the pro-life anti-abortion groups oppose it because they’re afraid it’ll open the door to a federal constitutional right to abortions? So it’ll be challenging, but procedurally, that’s exactly what we’re supposed to do, and we think it’s important enough to establish a new right,” McKenna concluded.