Although this posts may appear to be about abortion, it really isn't. To make my point I need to lay a lot of groundwork that the topic of abortion clearly lays out. If your interest truly is about abortion and Roe vs. Wade, I've included several links you may find interesting.
Lately, abortion has been all over the news with different states passing "heartbeat" legislation and Hollywood celebrities trying to force their opinions and morals on states they where they don't reside. It's been a zoo and probably will continue to be one. During all this I got to reading more about federal abortion laws. This didn't take long since there aren't very many and none of them have anything to do with the right to an abortion.
In 1973, the Supreme Court struck down a Texas law prohibiting abortion based on the grounds of "privacy" and the Fourth Amendment effectively making abortion legal in all 50 states. The Supreme Court went on to establish the trimester approach to abortion with states having no ability to regulate abortion in the first trimester and almost complete ability to regulate it in the third trimester. The decision was a 7-2 decision with Justices Byron White and William Rehnquist dissenting. A good summary of the case can be found here and a video of Justice Harry Blackmun (who wrote the majority opinion) discussing Roe vs. Wade can be found here.
The dissenting opinion was written by Justice White and later joined by Justice Rehnquist. One the subject of the decision being made based on the right to "privacy" the dissenting opinion states:
A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).
The dissenting opinion goes on to say:
If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty.
Keep this distinction between "privacy" and "liberty in mind, it will come up again.
On the subject of breaking the pregnancy into three terms the dissenting opinion states:
The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.
The problem with "judicial legislation" is that it doesn't exists under the Constitution. Article 1, Section 1 of the Constitution vest all legislative powers in the government to Congress. Article 3 of the Constitution details the Supreme Court powers without mentioning "judicial legislation".
Finally on striking the Texas law down the dissenting opinion states:
the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found [410 U.S. 113, 178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969).
White and Rehnquist here are saying that since Texas could restrict abortion in the third trimester of pregnancy so the law is not totally unconstitutional so it should never have been struck down. They are saying the decision was flawed.
There have been a number of Supreme Court challenges to Roe vs. Wade. Two that stood out to me were Webster v. Reproductive Health Services (1989) and Planned Parenthood of Southeastern Pa. v. Casey (1992). Webster affirmed the state's rights to restrict funding of abortions and prohibit state employees from participating in or advocating abortion. Casey made it possible for states to require parental notification prior to an abortion on a minor, require a waiting period, and to require "informed consent" where the patient is told in detail what the procedure entails. Casey also eliminated the trimester breakdown of pregnancy in favor of fetal viability and changed the Constitutional consideration from "privacy" to "liberty" just as White and Rehnquist had talked about in their dissenting opinion. Casey also reaffirmed Roe vs Wade. The bad news for pro-choice advocates is that in Webster four of the nine justices urged the reconsideration of Roe vs. Wade and in Casey 4 justices disagreed with the reaffirmation of Roe vs Wade.
With these close scares in Webster and Casey Congress set about to codify or make into law the Roe vs. Wade decision with the 1993 FOCA (Freedom of Choice Act). This had never been done before and the bill was ultimately defeated. A list of abortion related Federal Laws and amendments can be found here. To date, Roe vs. Wade still stands as the law of the land with no law to back it up.
And after all this I finally get to my point. Do we really want laws having to do with personal choices dictated from the Federal Government? In the case of abortion, from a group of nine individuals making a decision impacting something on the order of 325 million people. These decisions should be pushed as far down the governmental scale as possible. If the decisions are made at the state level they should be made in a way that comes down to a popular vote and let democracy decide what kind of state we live in. This doesn't just apply to abortion but I would throw education, gun control and drug legalization in there as well, and there are probably a lot of other topics that could be thrown in.
The "judicial legislation" in Roe Vs. Wade didn't help things long term. It's done more to confuse and inflame the issue than to provide a solution. Personally, I would love to see a nationwide concealed carry permit but I understand that people in different states have different attitudes about guns. I also know the Constitution does not grant Congress the power to make gun laws.
It's time the Federal Government was scaled back. It's too large and has it's fingers too much in our lives. Many of these decisions need to be place back at the State level with the individual citizens having a major voice. By the way, for you Hollywood celebrities, stay at home when different states are working through issues, The truth is, most of us don't care what you think.