Abortion

Floor Speech

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Mr. KENNEDY. Mr. President, we talk a lot in this Chamber, as well we should, about the least among us, about how we can protect and lift up the powers. And that is a good thing. I can't think of any person who has less power than a potential human life, than an unborn baby. Now, Roe v. Wade is, of course, about abortion. We know that. But it is also about something else. Roe v. Wade is also about--it is about federalism.

Roe v. Wade is also about the American people. Roe v. Wade is about whether a finite group of the managerial elite--and by the ``managerial elite'' I mean the entrenched politicians, the bureaucracy, the media, the academics, the corporate phonies, all of whom think they are smarter and more virtuous than the American people--should have the right to make moral decisions for the American people, instead of the American people making those decisions for themselves.

That is really what Roe v. Wade is about.

Now, I am pro-life and I am anti-Roe v. Wade. So I want to say up front: I do have an opinion.

But even pro-choice legal scholars who believe in legalized abortion on demand understand, as does every fairminded person who knows a lawbook from a J. Crew catalog, that Roe v. Wade is one of the most arbitrary, it is one of the most ad hoc, and it is one of the most poorly reasoned decisions in the history of the United States.

In Roe v. Wade, as you know, Mr. President, the U.S. Supreme Court held that a generalized right to privacy, not explicit in the Constitution, means that a woman has the virtually unfettered discretion to terminate a human life--some, to be fair, would say a potential human life--before viability.

What is viability? As my colleagues talked about, that is a really, really good question.

But I digress.

Anyone who knows a lawbook from a J. Crew catalog also knows that there is absolutely no foundation--not in the text, not in the structure, not in the history, not in the tradition of the Constitution--for a constitutional right to abortion, and certainly not on the basis of some unmoored general right to privacy that is not enunciated in the Constitution.

And don't even get me started on Roe v. Wade's trimester analysis and the ruling. Try to find ``trimester'' in the U.S. Constitution. You won't. You can't.

The truth is--and people on both sides of this issue who are fairminded and reasonably objective--and by that, I mean can see the other point of view. The truth is that Roe v. Wade's constitutional right to an abortion is a 48-year-old, judge-invented rule that represents the U.S. Supreme Court winging it.

Now, I know what we were told. We were told back in the 1970s: Look, we have got to have a national rule to settle this issue. Only Washington, DC, can settle this issue. We have to have a rational rule. We need some peace in the land. We need consensus.

How is that working out for us?

Roe v. Wade didn't settle anything.

Now, in the Dobbs case, which the U.S. Supreme Court is about to hear, the U.S. Supreme Court has a really rare opportunity to say, as Justice Scalia wrote in one of his opinions, that value judgments made on behalf of people should be voted on by those people and not dictated from Washington, DC.

In the Dobbs case, the United States Supreme Court has the rare opportunity to say what we all know, and that is that America is this big, wide-open, diverse, sometimes messy, sometimes dysfunctional, sometimes imperfect, but always trying-to-get-better group of good people. That is what America is.

And we don't always agree--especially not on value judgments, especially not on the ultimate value judgment--like when it is appropriate to take a human life. That is why we get to vote. That is why we get to vote, and that is why we have elected representatives who oftentimes vote on our behalf--elected representatives who also can be unelected if we don't like how they vote.

And, finally, in Dobbs, the U.S. Supreme Court has the rare opportunity to defederalize and deconstitutionalize abortion and return the issue to the States, where it was before Roe v. Wade.

The U.S. Supreme Court, in Dobbs, does not have the opportunity--and this is important--to say ``no right to an abortion in America.'' Let me say that again because some of the proponents of Roe v. Wade, I think, have shaded the truth on this. At issue before the Supreme Court in Dobbs is not the right to have an abortion. It is the right--the issue before the Supreme Court in Dobbs is, What is the appropriate political form to make these value judgments? Is it the government or is it the people?

And I hope that the U.S. Supreme Court takes advantage of this rare opportunity before it.

I yield to the Senator from Mississippi.

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