Is Abortion Unconstitutional?
I received this question through my contact page and would like to use this post to express my views on the matter of Abortion, but in doing so I am basically discussing Roe vs. Wade and whether the right to abortion is indeed Constitutional.
Dear Patriot Mind Guy:
I see from your “Statement of Principles” that you are both a conservative and a Christian. Most folks think that these go hand in hand. But I have a question about abortion. I’ll assume that you think that Roe v. Wade should be overturned and that the Court didn’t “strictly interpret” the Constitution in that decision. But assuming Roe v. Wade gets tossed, where does that leave us? Do you think that abortion laws should be left to the individual States (so that Texas could ban abortion and California could permit it)or should there be a Federal law prohibiting it? If you think the Feds. should pass a lay banning it, how does that square with your contention that you are a conservative and a strict constructionist from a constitutional standpoint?
Let me first start by stating that I am not a lawyer or a Constitutional scholar. Obviously I come at the question as a Christian and with the belief that Abortion is murder of the innocent, and is therefore wrong and immoral. Although this is my personal views, I would like to address the question legally the best I can and to the best of my knowledge. I am indeed a fairly strict constructionist, so it is important for me to reconcile both of these if the two can be reconciled, otherwise my strict constructionist view would require a constitutional amendment for abortion to be eliminated, etc. (but from my opinion I don’t believe this will be needed…)
From my knowledge on the subject, Roe vs. Wade was decided in favor of abortion on the 9th and 14th amendment. The 9th amendment was used to support the women’s right to privacy to execute an abortion, and the 14th amendment was used to support the woman’s right to abortion since it states that any State shall not deprive any person of life, liberty, or property, without due process of law. It was argued, that the state constitutional bans on abortion violated these 2 amendments of the US Constitution for a woman seeking to execute an abortion. The key although to Roe’s argument was the 14th amendment - section 1, which is referenced below.
14th Amendment – Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
Before I go further, I think it is important for all my readers to understand that a persons rights only extend so far as they don’t infringe on another individuals rights. So my right to ‘free speech’ only extends so far, in that it doesn’t infringe on another individuals right to ‘free speech’ etc. So basically, I cannot use my rights as defined in the US Constitution to eliminate another individuals rights, this is where my rights essentially end. (I believe both sides of the issue would agree with this statement above…)
That being said… In my opinion, the entire argument rests on the definition of ‘person’ as highlighted above. If a ‘person’ only includes the woman and not the unborn child. Thereby stating legally that the fetal infant is not a ‘person’ under the law, then Roe vs. Wade interpreted the Constitution correctly, and the State laws were unconstitutional. For the Roe vs. Wade decision to be in error, than the ‘person’ sited in the 14th Amendment would also have to include the infant within the mother. Thereby insisting that the infant indeed has rights that cannot be infringed upon, just like the mother.
My argument is that this section of the 14th amendment is referring to ‘all’ persons within the state, and that the ‘person’ cited in this amendment includes the unborn infant. My whole case rests on this position, and obviously enough, it is this position that is most hotly debated. Because of this, I don’t believe I will convince many of the abortion supporters, (maybe only those who are on the fence) so I would like to deal with it only briefly.
This is the part where so many disagree…
I would hold that an unborn infant is indeed a human ‘person’. That a ‘person’ comes into existence during conception which marks the point when the sperm and the egg combine into a completely unique, living, single organism, with a unique DNA structure. It is also my understanding that biologists have also determined that the cell is the basic form of human life, and we know that at conception the unborn child is made up of individual cells that are a unique DNA structure, different from both the father and the mother. It is therefore my interpretation and belief that at this point of conception, the infant obtains inalienable and Constitutional rights. In summary: the right to life, liberty, and property, etc. Because of this interpretation, the state, the mother, or the federal government cannot infringe upon the rights of the unborn infant. Essentially the woman’s right end where the ‘unborn infants’ rights begin.
It is also my belief that this would be the intent of those who amended the Constitution to include the 14th amendment. One of the 2 dissenting judges, Judge Rehnquist, from Roe vs. Wade explains… (the other dissenting judge was Justice White)
Rehnquist elaborated upon several of White’s points, by asserting that the Court’s historical analysis was flawed:
“ To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.[1] ”
From this historical record, Rehnquist concluded that, “There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted.” Therefore, in his view, “the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”
So my belief is that Roe vs. Wade is indeed unconstitutional and should be overturned. I believe that the previous State abortion bands are constitutional because they protect the rights of the unborn and fall within the intent of ‘person’ within the 14th amendment, and inalienable rights as described in the declaration of independence and overall spirit of the Constitution. I would also hold that any law created by the States to allow an abortion, would actually violate the 14th amendment in regards to the rights of the unborn. So in this sense, I would turn the tables on Roe vs. Wade and say it was on the wrong side of the argument. Only the States that allow abortions by law, would be acting in violation of the US Constitution. Because of this belief and interpretation of the law, I would also support a federal law banning abortions and still believe it would fall under my strict constructionist views.
During Roe vs. Wade, only 2 out of the 9 judges agreed with my interpretation, the other 7 voted in favor of abortion. With all the new medical evidence of infants surviving before natural birth and the scientific evidence of the development of an infant within the uterus, it would be interesting to see how the court would rule today if Roe vs. Wade was ever brought before the court again.
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