– Ana Navarro, May 3, 2022
The problem with Roe v. Wade was that Justice Potter Stewart’s concurring opinion wasn’t embraced by the majority. It was decided on the basis of right to privacy rather than on the Due Process Clause of the 14th Amendment which guarantees equal rights:
. . .in Eisenstadt, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.
If Stewart’s opinion had prevailed, a woman’s right to choose would have been a solid fundamental right. It also didn’t help that the Equal Rights Amendment was never ratified.
Anne Caroline Drake 