His opinion is that “the states would have repealed these laws” and further goes on to say that he uses the word "would" because “[the states] are no longer free to do so.” This sentiment cuts directly to the real issue of the argument. It is not about abortion per se, but rather the hasty judgment that lamed the legislative process and prevented the standard discourse of political action, which was moving inexorably towards resolution. Moreover, the resolution had no grounding in the Constitution.
When asked to decide the worst opinion, I found it to be more difficult than deciding my favorite. I felt that Terri Collett's opinion was incorrect, but I also felt that her perspective as a woman should be deferred to on this issue. After reading it, however, I felt that I had witnessed an atrocity that needed to be rectified.
I choose Terri Collett's opinion as the worst of the eleven because her idea of feminism is counter-productive and her argument is littered with elements quoted directly from the religious right. Religion is biased on this issue and has no place in the democratic judgment of women's fundamental rights because of the influence of patriarchy throughout religion's history.
Further, her argument attempts to trap us within circular logic. She first states that no one knows the consequences of pregnancy like a woman and that abortion frees men from sexual responsibility. She then goes on to add that abortion is conforming to the “male-model.” However, how often do we see single mothers' living in poverty because the father is absent and left her to fend for herself and her son or daughter? Is this not giving women an answer to a man's immaturity?
Her ideas are clearly undeveloped because she is forced to use stories and emotions to try to quantify her ill-conceived opinion. A story about a cabin boy who was cannibalized by his other larger shipmates is an example of Darwinism. It is not an example that is relevant in justifying anti-abortion sentiment.
Aside from the logical assumption that Roe v. Wade interfered with the likely path of democracy and abortion, the other part I find convincing is his point about the Constitution's lack of a measure securing personal autonomy. Privacy among other things is guaranteed through the First Amendment, as is personal dignity through slander and libel laws. Autonomy, or the ability to operate the way you wish, is not guaranteed by the Constitution.
If autonomy was definite, then there would be no crime since one would be operating the way one wishes to when he or she robbed a bank. Many have drawn the conclusion that if privacy is guaranteed, and if dignity is guaranteed, then autonomy is guaranteed as well. Dissenters might even have a related point to being able to be autonomous from the government, but personal autonomy is not expressed within the Constitution. I concur with Rosen that the lack of provision for personal autonomy was an intentional oversight.
The 14th Amendment does allow for laws not specifically enumerated in the Constitution, but when the 14th Amendment was passed citizen's rights were not viewed as an “abstract set of rights…judges could define on a whim.” The 14th Amendment guaranteed civil rights when passed in the 19th century, not social rights.
Since the pressures women feel in relation to abortion are social and not legal, they are not protected by the 14th Amendment. This could be splitting hairs if abortion were illegal, but because the laws are so vague and because women face legally pettier distractions like insults and threats for their choices, a woman getting an abortion does not risk legal penalty.
Moreover, terminating a pregnancy is inherently a social issue and would seem to be irrelevant to the course of a country's path, hence Rosen's dissent. No person or authority suggested that abortion restrictions violated the Due Process Clause or Equal Protection Clause when the Fourteenth Amendment was ratified, yet 30 of the 37 states of the Union had placed restrictions on abortion at that time.
Now, as Rosen points out, tradition is not a static element, but rather a living entity capable of dramatic changes over a short period. History has done a great deal to suppress women and encourage their status as second rate in relation to men but our era is quickly making up for lost ground. Roe is the figurehead for one of the most radical changes of the Equal Rights struggle, perhaps with the exception of the Civil Rights movement itself. In 1973, 13 states had already adopted the American Law Institute's Penal Code approach.
This allowed for abortions if the health of the mother was threatened, if the child was believed to have serious birth defects, or if the pregnancy resulted from rape, incest, or any other negligible intercourse. Four states allowed abortions within the first trimester without penalty. Today only a small minority of US states follow this model.
