On Another Anniversary of Roe v. Wade: Four Issues to Consider (Part 1 of 2)

Author: Andy Woods
Date Written: January 11, 2014
From the archive of thewordonpolitics.com

On January 19, churches throughout our nation will commemorate yet another Sanctity of Human Life Sunday. It has been over four decades since the infamous Roe v. Wade ((Roe v. Wade, 410 U.S. 113 (1973).)) decision, which legalized abortion-on-demand throughout our society. Over the past four decades, both sides in the debate have had ample opportunity to present their side of the argument to the public on the foundational issue: When does life begin? Since most Americans are probably already well-versed on what both sides have to say on that important issue, allow me to briefly focus on four issues that are less prominent in the abortion discussion.

First, the so-called right to procure an abortion is nowhere found in the text of our Constitution. This is an important point to make since we have heard the slogan "a woman's right to choose" so frequently repeated, that many Americans incorrectly assume that there is some kind of authority for this right found in America's founding documents. In fact, nothing could be further from the truth. The Roe v. Wade decision guaranteed women the constitutional right to procure an abortion. It is simply impossible to argue that the Constitution supports a right to have an abortion if this issue is analyzed from the perspective of original intent of the Constitution's framers. Interestingly, any express reference to "abortion" or "privacy" cannot be found within the actual text of the Constitution. Moreover, although the Roe court found a constitutional right to obtain an abortion on the basis of the word “liberty” found in the Fourteenth Amendment, the authorial intent of the Fourteenth Amendment has nothing to do with abortion. The Fourteenth Amendment was passed in 1868 in the post-Civil War era in order to guarantee specific rights to recently emancipated slaves. In fact, the authorial intent of the Fourteenth Amendment argues strongly against using this amendment as a means of justifying a constitutional right to acquire an abortion. The very states that ratified the Fourteenth Amendment in 1868 had either passed or were in the process of passing laws prohibiting abortion. However, Justice Blackmun, in writing for the majority, was able to "find" such a right by seizing the opportunity of reinterpreting or guiding the evolutionary "progress" of the Constitution. Because society had allegedly matured or progressed to the point where “reproductive freedom” should be honored, the Constitution needed to be reinterpreted in order to keep up with this new societal value.

In addition, Blackmun borrowed the right to privacy language from a case handed down a few years earlier called Griswold v. Connecticut. ((Griswold v. Connecticut, 381 U.S. 479 (1965).)) In Griswold, the court struck down a state law restricting access to contraceptives. The court reached its decision on the grounds that such laws violated the constitutional right to privacy. Since the Constitution does not explicitly mention the right to privacy, where did the Griswold court base the existence of such a right? The court found it within the “penumbras” of the Bill of Rights. A penumbra is a shadow. In other words, despite the fact that the word "privacy" nowhere appears in the actual wording of the Constitution or the Bill of Rights, the court “discovered” this right to privacy within the shadows cast by the Bill of Rights. In Roe, the court ruled that state laws restricting access to abortion are unconstitutional. Blackmun based this decision on the privacy language from Griswold. Blackmun reasoned that procurement of an abortion falls within the purview of this manufactured right to privacy. Thus, Blackmun and the Roe court were able to guide the evolutionary progress of the Constitution so that it would guarantee a woman’s constitutional right to an abortion only by trampling upon the intention of its framers. Because no such right to privacy expressly exists in the text of the Constitution, Blackmun had to manufacture such a right from the shadows of the Bill of Rights. Moreover, as mentioned earlier, Blackmun found the right to an abortion in the liberty clause of the Fourteenth Amendment only by ignoring the historical context in which the amendment was written.

So there you have it. The king has no clothes! There is no foundational legal source guaranteeing a right to have an abortion. Thus, the Roe decision is bad law. Consequently, it is also unjust law. Millions of unborn children have lost their lives as a result of a decision "discovering" a constitutional right that came into existence through the mere stroke of a pen based upon nothing more than the judiciary's personal predilection regarding the direction society ought to be headed. Second, the Roe decision is contrary to both America's founding Democratic and Republican ideals. Who ultimately is supposed to decide foundational questions, such as when does life begin? Prior to Roe, this decision was handled at the state level. In other words, the institution closest to the people and directly accountable to them through the ballot box resolved the question of when life begins. Roe changed all of this. In essence, the Roe court federalized the issue. By ruling that the choice to have an abortion is now a constitutional right, the question of life was taken away from the state governments and instead placed in the hands of federal judges. Thus, decision-making power in this instance was transferred away from the people and their representatives and instead placed into the hands of the national judiciary. Because federal jurists are appointed for life and thus insulated from, and unaccountable to the people, Roe transferred decision-making power on this critical issue away from the people and toward an unelected, oligarchical, elite group of decision makers. By allowing the final arbitrators to be those removed from the people, the American notion of "we the people, by the people, and for the people" suffered a catastrophic blow when the Roe decision was handed down. At this juncture, it is appropriate to recall the following haunting words from Ronald Reagan's 1964 speech entitled "A Time for Choosing." Here, our future President warned:

"If we lose freedom here, there is no place to escape to. This is the last stand on Earth. And this idea that government is beholden to the people, that it has no other source of power except to sovereign people, is still the newest and most unique idea in all the long history of man's relation to man. This is the issue of this election. Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can plan them ourselves."


(To Be Continued...)