Was Roe v. Wade correctly decided? No.

The logic of Roe was that the right to privacy (see Griswold) protected a woman's decision whether or not to terminate her pregnancy. This reasoning, which I will address presently, fails to convince; but there are additional reasons why the Court's holding was utterly absurd.1. The Constitution does not list a right to abortion. Therefore, like most things, the practice of abortion, and the restrictions on it, are to be decided by democratic choice (i.e. citizens convincing one another that their position is correct, and then voting). Of course some states could legalize abortion; my view is simply that the Constitution does not require it to be legal. The standard response is that the Ninth Amendment contains un-enumerated rights which are judicially enforceable. That is false. We have had a contrary understanding for almost two hundred years. Keep in mind that the Bill of Rights only applied to Congress when it was ratified. It was the Fourteenth Amendment that "incorporated" these protections against the states. The only reason why the Framers adopted the Ninth Amendment was because they were concerned that by enumerating certain rights, it would lead people to think that Congress could do anything so long as it didn't violate the first eight amendments, thus "enlarging" its power beyond those given in Article I. The Ninth Amendment was the solution. It specified that Congress could only do things pursuant to its enumerated powers even if they were not violating a specified right. It did not say that the judiciary can impose unheard-of new restrictions against the states by "discovering" new rights. That would give extraordinary power to the judiciary to overrule democratically enacted legislation by looking into their magical crystal ball (the Ninth Amendment) and announcing some new right that had never before been regarded as Constitutionally protected. The Framers did not replace tyranny by a monarch with tyranny by the Supreme Court. And even if the Ninth Amendment creates a well of judicially enforceable rights, why must it include a right to abortion? There is no evidence that the Framers of the Constitution, or any of the subsequent amendments, believed that there was such a right. The only way it can be created is by permitting the Justices of the Supreme Court to impose upon the people their own political preferences. Adherents to Roe must not only regard that prospect with equanimity, but solicit it.Because the Ninth Amendment applied only to Congress, Justice Blackmun (the Court opinion's author) based his opinion on "the Fourteenth Amendment's concept of personal liberty" stemming from the Due Process Clause via a doctrine called "Substantive Due Process" that is very idiotic. Sadly, I don't have enough characters to address it here.2. When does life begin? The logic of Roe (discussed above) could be entirely correct, yet the Court would still have been wrong to create a right to abortion. The decision to abort a pregnancy is only "private" if you posit an answer to the clearly non-justiciable question of when life begins. If the unborn child is alive, abortion is no longer private at all. It would be no less private than murder. When life begins is not a question that the Supreme Court can answer because there is nothing in the Constitution that provides one. What constitutes life, and when it starts, is a value judgment. Value judgments should be voted on, not dictated by nine unaccountable lawyers. Please note that I am not saying that life begins at conception. My argument is that, if a majority of its citizens believe so, a state may decide that life begins at conception and prohibit abortion. It is for the people to decide. 4. When the Fourteenth Amendment was adopted, abortion was illegal in almost every state. As I explained above, the Court's decision was based on this amendment. An extraordinary obstacle for the proposition that it includes a right to abortion is that, when it was ratified, abortion was illegal (or restricted) almost everywhere, and remained so for a century. Nobody ever thought that adopting the Fourteenth Amendment changed this legal norm. As Justice Rehnquist put it in his dissent, "[t]o reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today....There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted....the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to [abortion]." When the people's representatives adopted the Fourteenth Amendment, they did not create a right to abortion. They created an amendment that allowed prohibitions on abortion. In Roe, the Court, in effect, invented a new amendment that no one voted for. The only way to arrive at the Court's result is to substitute for the Constitution's text and history the personal biases of superannuated judges whose decisions are virtually impossible to check.Everything I have written until now are independent reasons to reject Roe v. Wade. Now I turn to the argument on which the Court rested its holding: that the "right to privacy" protects a woman's decision to have an abortion. One scarring flaw is the issue of when life begins, discussed already. The Court purported to settle this controversy by noting that the Constitution grants citizenship to persons born on U.S. soil. The Court, mind-bogglingly, thought this was sufficient to answer a question that I have already shown is non-justiciable. Even beyond that, however, the Court's analysis is wrong. The fact that one must be born on U.S. soil to be a citizen does not mean that one cannot be a person (i.e. have a life) before then. Foreigners in this country are not citizens, yet it is still illegal to kill them. Likewise, a state can prohibit abortion on the grounds that it is killing a "person," even if that person is not yet a citizen. Thus, the Court's opinion does not prove that the unborn child is not alive, a condition necessary to hold that abortion is "private," and thus included under the right to privacy decreed in Griswold. Even though it was wrongly decided, I am willing to assume, for the sake of argument, that Griswold was correct. The Court's application of this precedent was misguided because doing so assumed that the decision to abort was "private," an assumption that cannot be made given the lack of support in the Constitution, for the proposition that life begins at birth, and not before. If life begins at conception, abortion is infanticide and thus--obviously--not private. No matter your personal views on this matter, one must conclude that the question of when life begins is something for our society to decide via the democratic process. In Roe, the Court converted a milestone of judicial overreaching (Griswold v. Connecticut) into the very Cheop's Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing this invented right, that cannot be found in the Constitution and contravenes the express views of the Constitution's authors, upon the people, the Court destroyed its own legitimacy beyond all doubt. Until Roe is overruled, it will continue to blight our Supreme Court's otherwise largely correct jurisprudence. The Constitution does not grant a right to abortion. Let us stop pretending that it does.