Dershowitz to Newsmax: Abortion Ruling Based on 'Extreme Judicial Activism'

The Supreme Court's decision to overrule Roe v. Wade was a "self-inflicted wound" based on "extreme judicial activism," Harvard law professor Alan Dershowitz said on Newsmax Friday.

"I think people don't realize the Supreme Court didn't have to overrule Roe v. Wade to decide the case before it, which was the Mississippi statute, which says no abortions after 15 weeks," Dershowitz, a Newsmax analyst, told the network's "John Bachman Now."

"The court could simply have said 'we hold this statute constitutional, no abortions after 15 weeks and no overturning of Roe v. Wade.'"

But, he said, "this is extreme judicial activism" with a decision that was not made in the proper case.

"The court would have overruled Roe v. Wade in the proper case, maybe a year or two or three from now."

But rushing to overturn the 50-year-old precedent decision, particularly in a case where the issue was not presented, was done to "provoke division," and it will do that, and in the end, "it will help the Democratic Party," Dershowitz said.

"In the end, we probably will see future challenges probably, in an effort by the Democrat-controlled House and Senate," he continued.

It was also shocking that Chief Justice John Roberts joined in the opinion on the case, as even without him, the majority would have ruled and he could then have written a separate opinion, said Dershowitz.

He also argued strongly against comments made during the congressional Republicans' response to the decision, particularly Rep. Chris Smith, R-N.J., who said the opinion protects the rights of fetuses, but "the rights of their co-victims, their mothers."

"How dare he?" said Dershowitz.

"Mothers are intelligent people. They have the right to make decisions. They may not have the right to kill a fetus; that's an issue up for dispute. I happen to think that within a few beginning of the pregnancy, they do, but that's not the issue. The issue is, don't say this protects the rights of women. Women are human beings with agency and autonomy, and he denies them the right to choose."

Even if the right to choose conflicts with the rights of a fetus, "the women's rights, we know that has been taken away and you can't soften this opinion by saying it also supports the rights of 'co-victims,' who are women," he added.

Dershowitz further argued that the Fourth Amendment guarantees people the right over their bodies, and "that includes the right of women to make good choices."

"For example," he continued, "If the court had said women cannot choose to have their appendix removed without their husband's approval, obviously, that would be unconstitutional, even though there's no explicit mention of the appendix in the constitution."

Fetuses are "real people" and not appendixes, he concurred, so the decision "requires a balance," but "to say that just because the word is not mentioned in the Constitution, that's absurd. Neither is birth control. Are we going to now attack birth control?"

The decision must also not be applied to other issues, including same-sex marriage, Dershowitz insisted.

"There are no victims of gay marriage," he said. "It is nobody's business if a gay man marries another man, it's nobody's business if a black man marries a white woman. And yet all of those rights and hear from a right of privacy growing out of the Fourth Amendment, that amendment and the 10th amendment, then that has been undercut."

That means there is "legitimate concern" that those rights could be taken away, even with the court's statement that it is limiting Friday's decision to abortion, as lower courts could take up the other issues, Dershowitz added.

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