Does overturning Roe v. Wade take away a constitutional right?

What's about to happen in this country isn't just an assault on the vocal minority of women who've been taking to the streets, to state capitals, to the Capitol to demand that our voices are heard, that our [constitutional] rights aren't trampled on, that our bodies stay ours.

Rachel O'Leary Carmona, Fox News, May 9, 2022

One common claim made by supporters of Roe v. Wade, the 1973 Supreme Court of the United States (SCOTUS) ruling that legalized abortion in the United States, is that if SCOTUS now overturns Roe, this would take a constitutional right away from women.  Since it is unacceptable to reduce people's rights, so the argument goes, overturning Roe is clearly wrong.

In fact, this argument is, in the logical sense, "question-begging" (i.e., it assumes what it purports to prove).  For if the SCOTUS does overturn Roe, then the premise of that argument (that women actually had this right) is false. 

The point is that determining precisely what constitutional rights women have is precisely what SCOTUS is deciding!  If SCOTUS overturns Roe, this means that this alleged constitutional right was wrongly decided in the original 1973 Roe decision.  That is, what this would mean is that this alleged constitutional right was never there to begin with.  Thus, by overturning Roe, SCOTUS is not taking away a constitutional right that women already had.  Rather, overturning Roe is correcting a mistake that created the illusion of a right where none exists.

Consider an analogy!  In an NFL game, Tom Brady throws the football to Rob Gronkowski in the end zone, who cradles it as he steps out of bounds.  The referees all raise their arms and signal, "Touchdown."  However, the opposing team calls for a review.  When the videotapes of the play are examined closely, it becomes clear that when Gronkowski went out of bounds, he had trapped the ball against his body (not a legal catch).  The referees overturn the call and now signal, "No touchdown!"

The correct description of this process is not that Brady had a touchdown, and the referees took it away from him after viewing the videotape.  The correct description is that even though both Brady and the referees thought for a time that he had a touchdown, the truth is that he never had one.  So when the referees reverse their call, they are not taking anything away from him that is rightfully his.

Similarly, if SCOTUS overturns Roe, this means that the original decision that women had this constitutional right was wrong.  In this case, women never had this constitutional right after all.  One cannot "trample on" a constitutional right that never existed.  People may, of course, feel that women had this constitutional right, but this is incorrect because they no more had this constitutional right than Brady, in the case described above, had the touchdown.

The argument that overturning Roe takes a constitutional right away from women is not only question-begging.  It is also an "appeal to emotion" fallacy.  By wrongly suggesting that overturning Roe takes a constitutional right away from women, the defender of Roe suggests that women have been robbed of something that is rightfully theirs.  That is, they compare overturning Roe to theft, which arouses people's emotions.

However, this is also wrong.  Compare again with the football example.  When the referees reverse their decision, Brady may feel that he was "robbed," and that the game was "stolen" from him.  However, if the referees overturned their original call on the basis of a closer view of their original call, Brady was not robbed.  Nothing was "stolen" from him.

The same is true in the case of Roe.  If SCOTUS overturns Roe, that means that women never legitimately had that alleged constitutional right and, therefore, that they cannot be "robbed" of it.  There is no "theft," and the appeal to emotion appropriate to genuine theft is illegitimate.  The appeal of people's emotions, not their reason, is the last thing that is healthy in this and other crucial cultural debates.

If SCOTUS does overturn Roe, the wise course of action for both sides in each state is to sit down together and try to hammer out compromises that fit that state.  Unfortunately, that is very hard to do when textbook logical fallacies and appeals to emotion are employed to distort the normal healthy democratic process.

Image credit: Wyprint, Pixabay license.

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