America’s Black Monday

On January 22, 1973 the U.S. Supreme Court delivered a blow to the Constitution and American jurisprudence from which we’ve yet to recover. That was the day when seven black-robed justices overstepped their authority and plucked a right to abortion from the 14th Amendment, where no such right had previously existed.

Wading through judicial opinions is taxing even for those schooled in law and legal precedent. For the rest of us, we have about as much chance to comprehend this maze of legalese and obscure rulings as we do of deciphering faded Egyptian hieroglyphics. The endless references and cross-references confuse with regularity, even if not intentionally meant to do so. Yet even the slightest diligence, research and application of common sense will reveal Roe v. Wade for the fallacy it is.

The plaintiff in Roe v. Wade alleged that Texas’ abortion laws, as they existed in 1971, violated privacy guarantees found in the First, Fourth, Fifth, Ninth and Fourteenth Amendments. While there’s no doubt that Americans enjoy the privacy and freedom to determine their sexual activities--we owe deference not to governments but to Divine Authority or personal conscience for our intimate choices--there’s neither reference nor inference to abortion in the U.S. Constitution. That would necessarily include the cited amendments. The U.S. Constitution therefore grants no authority to the federal government to act on the matter of abortion.

One may attempt to form a case for federal oversight based on the authority to regulate interstate commerce found in the Constitution’s Article One, Section Eight, a clause already bastardized beyond imagination. But in the Roe complaint there was no interstate commerce to regulate, rendering even an oblique application of the commerce clause a moot point.

Abortion is not a subject in which the federal government enjoys authority to speak, regulate, or legislate. The Constitution’s silence becomes each state’s gain. The Tenth Amendment explicitly grants authority to the states or to the people in all areas where the central government is not specifically authorized to act. Therefore Texas, and all other states, reserves the right to regulate abortion to whatever extent represents the ideals, perceptions and morals of their citizens.

Ample precedence existed before the fateful Roe v. Wade decision to support the state’s rights view on abortion regulation. Each state had governed abortion as it saw fit for well over a century before the Supreme Court inserted itself into the equation. As Justice William Rehnquist cited in Section II of his dissent:

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

There was no longstanding precedence affirming abortion as a fundamental human liberty that would warrant Court action in its defense. A right to abort a pregnancy is not a self-evident truth, as is the right to speak freely, to petition the government, or to bear arms in protection of self, family and liberty. Ironically, these latter liberties--all essential--are under constant assault from the very factions that consider abortion rights an integral part of a document in which no such right appears.

The fact that states had possessed authority over abortion law until the Roe decision further refutes the idea of abortion being a fundamental constitutional liberty. States had exercised regulatory authority over the performance of abortions since prior to the Civil War, which necessarily meant before the ratification of the Fourteenth Amendment in 1868. It cannot be said that the drafters of said Amendment then intended to remove from the states authority over subjects not addressed in its language.

One of the chief arguments Roe supporters present is the need for easy abortion to protect a mother’s life. On the surface this reasoning has validity. There’s no doubt that each person owns their life--at least in relation to their government and fellow man--and cannot be legislated into surrendering that life without due process of law. This is essential to liberty and enshrined in the Fifth and Fourteenth Amendments. However, only pure ignorance on the part of abortion supporters can justify citing the protection of the mother’s life in defense of Roe.

The Texas law that Roe v. Wade overturned did not outlaw abortions under all circumstances. That reality circumvents the most cited argument for abortions, if indeed protecting the mother’s life is the Roe supporters’ prime concern, which is debatable. The overturned Texas statute, enacted in 1857, provided for an abortive remedy when the mother’s life was at risk. Thus the pro-abortion “life of the mother” argument is rendered moot, for no mother’s life was jeopardized by the Texas law. This fact was recognized not in the Rehnquist dissent but in Section 1 of Blackmun’s majority decision.

Another of Blackmun’s rationale seems equally contradictory. In Section VI (4), Blackmun cited English law in evidence for his opinion. The British Parliament had passed legislation in 1967 that greatly liberalized the use of abortion as a medical treatment. In addition to protecting the mother’s life, the British law also took into account the mother’s physical and mental health as well as the prospects of both for the fetus. In other words, the British legislated in favor of abortion on demand. Blackmun basically inserted the British law into the U.S. legal system, subverting state authority and the legislative process.

Abortion remains a divisive issue mainly because of Blackmun’s activism. Notice that the British altered their abortion laws through their elected representatives. The various states comprising the United States saw their abortion laws altered by judicial diktat. The American people had no voice whatsoever in the direction an issue of such moral, personal and religious sensitivity would progress. It was imposed sans the consent of the governed, a fundamental overstep of judicial and federal authority.

The best avenue for addressing the abortion issue to everyone’s satisfaction is to overturn Roe v. Wade in its entirety. The ruling represents a poor application of the Constitution, if indeed the states have sovereign authority over all powers not delegated to the central government nor constitutionally prohibited to the states and the people. And they do, for although the Tenth Amendment is routinely compromised and ignored, it hasn’t been repealed.

Without Roe v. Wade each state enjoys sovereign authority to establish abortion protocols representative of their citizens’ moral and ethical conscience. Under such a scenario people can move to a state where their positions are adequately represented, whether their views on abortion side with the Southern Baptist Convention or the National Organization of Women. Under the current condition, everyone must live under the onerous decision rendered by Blackmun and his six activist colleagues.

Abortion law under Roe v. Wade does not reflect the consent of the governed. It represents the tyranny of the judiciary and it’s wholly at odds with both the concept of a free people and the idea of a representative republic of sovereign states.