Arguments in favor (6/9 Justices)
Roe v. Wade is invalid
1. Arrogation – Roe unduly took authority from the states, making law instead of interpreting law
2. Vagueness – Roe applied abortion under the umbrella of “liberty” in the 14th amendment, but “liberty” is too vague to necessarily include abortion.
3. History – Roe assumed that there was a history of tolerance towards abortion - justifying its status as a right, but the preponderance of historical evidence doesn’t support this conclusion
4. Complexity – Abortion is complex enough to not mandate at the federal level and let the states try and figure it out.
5. Precedent – Cases cited by Roe v. Wade do not connect to killing a “potential life”
6. Broadness – Roe v. Wade’s interpretation was too broad; a broad right to “liberty” could include a right to bad things like illicit drug use, prostitution, etc.
7. Arbitrary – Roe’s emphasis on viability of the fetus is arbitrary.
8. Implementability – Roe’s “undue burden” principle is too ambiguous to implement.
Arguments against (3/9 Justices)
Roe v. Wade is valid
1. Authority Balance - Roe was validly trying to balance state rights with women’s rights
2. Value Balance – Roe was validly trying to balance life, liberty, and equality
3. Need for Rights - Certain rights should transcend majority rule at the state level
4. Stare Decisis – By principle we should uphold the precedent; Roe was reaffirmed by Casey. Throwing away 50 years of reaffirmed precedent violates stare decisis.
5. Unjustified - Three reasons for violating precedent are not met: (1) a change in legal doctrine that undermined or made obsolete the earlier decision; (2) a factual change that had the same effect; or (3) an absence of reliance because the earlier decision was less than a decade old.
6. Contradiction - The 14th amendment was broad enough for the right to marriage, but not broad enough for the right to abortion?
7. Vagueness is a Feature – Authors of the constitution were deliberately vague for the flexible development of rights.
8. Sexism - Women were not involved in the creation of the 14th amendment
9. Dignity - The right to control how one raises a family is one aspect of “personhood”
10. Not Arbitrary - Viability is not arbitrary – since life can be maintained independently at that threshold.
11. Implementable - Nothing unworkable about the precedent in Roe.
Overruling Roe is Harmful
1. Tyranny - States can now tyrannize women, greenlighting even total abortion bans.
2. Regressive - The “argument from history” (i.e. only historically accepted values are valid rights) applies to slavery, gay marriage, etc – making all new rights invalid, since history was regressive.
3. Warring States – Overturning Roe will cause each state to fight with each other over conflicting laws for travelling abortions, mailing abortion medication, etc.
4. Unresolved – No abortion guidance in decision.
5. Unity – Cultural disagreement is a reason to adhere to precedent to maintain social order.
6. Progress - Global trend towards allowing abortion. Decision is on the wrong side of history.
7. Consequences Ignored - Decision doesn’t discuss its potential impact on women.
8. Extreme Cases - This ruling fails to even try to protect women in extreme cases.
9. Physical Consequences – Death of mothers.
10. Financial Consequences – Healthcare, pregnancy discrimination, lost work.
11. Regressive Impact - Poor women will suffer the most – unable to travel and will resort to unsafe abortions.
12. Loss of Rights – Costs them their freedom, dignity, equality, and also potentially taking their life.
13. Reliance - Women rely on Roe to plan their future.
Change is not justified
1. Status Quo - Nothing in society has changed in a way to necessitate this ruling
2. Interdependent – Prior cases form a interconnected tapestry of human rights, that includes abortion, where damaging one right puts the others in danger.
3. Bias - As quickly as they could, they banned Roe, evincing their biased dislike of Roe - undermines the Court’s legitimacy.