Roe v. Wade draft opinion sparks discussion about how to interpret the Constitution

Reporter: Gail Levy Writer: Matthew Seaver
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FILE – The Supreme Court is seen at dusk in Washington on Oct. 22, 2021. The Supreme Court is hearing a case its conservative majority could use to hobble Biden administration efforts to combat climate change. In arguments Monday, Feb. 28, 2022, justices are taking up an appeal from 19 mostly Republican-led states and coal companies over the Environmental Protection Agency’s authority to limit carbon dioxide emissions from power plants. (AP Photo/J. Scott Applewhite, File)

The leaked draft Supreme Court decision on Roe v. Wade has sparked a new discussion about how you interpret a 235-year-old document like the Constitution. Do you take it word for word, or let the words revolve around the present day?

“There’s a problem with taking words literally, for example, article two of the constitution requires that the president be a natural-born citizen, if you take that literally would exclude from the presidency, anyone born cesarian section,” said Stephen Mikochik, a visiting professor at the Ave Maria School of Law.

Mikochik is an emeritus professor of constitutional law. He said he doesn’t believe there are many people serving on federal courts that are textualists, people who interpret the meaning of the text through an objective definition of the words, but rather those who have a more moderate perspective or originalists.

“They will interpret the words of the constitution, as they were used at the time the constitution was adopted,” said Mikochik.

Mikochik said that does come with its own problems. “The constitution isn’t scripture. And the framers weren’t gods. They could not have anticipated many of the changes that the country has experienced over the last 250 years,” said Mikochik.

Nor could the justices on the Supreme Court during the original Roe v. Wade be able to anticipate the world of illegal abortions.

“In the years right before Roe, the women’s movement came into being and they encouraged women to speak out about their experiences, and the horror of illegal abortions became known to the justices who were shocked, frankly,” said Geoffrey Stone, with the University of Chicago Law School.

Mikochik said Justice Alito’s draft says the shock shouldn’t fall on the Supreme Court. He said it should be in the hands of elected officials.

“The Supreme Court is elected by no one, and once they’re in the office, their accountability is very limited,” said Mikochik.

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