The Constitutional Case to Overturn Roe v Wade

Jack Parkos | @laissez_faire76

In December of 1973, the Supreme Court made one of its most controversial (and worst) rulings, Roe v Wade. It declared that the Constitution protects abortion; therefore, the states could not pass restrictions on it. However, states could pass laws to limit abortions in the third trimester.

Despite this, Republicans in numerous states have recently passed laws with very strict restrictions on abortion. Clearly, this is an attempt to get a lawsuit and with it, a case to the Supreme Court. Hopefully, this will lead to the Supreme Court overturning Roe v Wade, once more leaving the issue to the states.

A Pro-liberty Argument

Thomas Jefferson wrote in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”.  The men who built this country held the vision that we must respect all people’s lives and liberties. Some argue that abortion is a form of liberty, as the women have control of their bodies. However, this is overly simplistic, for she is also taking the right to life from the baby.

Liberty is not the right to take away the rights of others; the very basis of the American Revolution was a protest of this idea. Essentially, the nature of abortion violates the liberal-libertarian values America was built on. The fact that the federal government allows and sponsors abortion is a spit in the face to the very basis of this nation.

A Constitutional Argument Against Roe v Wade

According to the Supreme Court, the Constitution declared a right to an abortion; they cited both the 4th Amendment and the 14th Amendment as reasoning. The Fourth Amendment protects the privacy of citizens, so the court decided this would protect a women’s “right” to choose. Be that as it may, this is not what the Fourth Amendment is supposed to protect. If that was the case, murder and theft could not be illegal because of “privacy”. Privacy protects one from facing unfair searches or seizures from the government. But if someone commits a violent crime, it is very reasonable to search him or her (with a warrant). So, why did the court decide that murder (a violation of the right to life) is none of the government’s business when the state is supposed to protect these rights?

Moreover, if the state takes the role of “protecting our rights” then it should not pick and choose who to protect. The 14th Amendment states that all citizens must be equally protected under the law. However, abortion does not protect the right to life of the baby. In reality, the verdict created a great inequality and a violation of rights in the name of “humanity” and “equality”.

Some may counter this and say that a fetus is not a human and therefore, does not have these rights. In reality, this is biologically false and a very dangerous idea. Nobody has the right to declare another human as “inferior” or “non-human”. According to Roe, the states cannot reject this idea. The federal government has failed its own sole purpose, and when the states tried to prevent this inhumanity, the feds barred them from doing so.

The 10th Amendment

The 10th Amendment leaves all issues that the Constitution does not delegate to the United States up to the individual states. Clearly, abortion is not in the Constitution; thus, it becomes an issue for the states. The founders intended for the states to prosecute most crimes, including murder, assault, and theft. This is why different states have different standards and punishments for crimes.

In fact, the only three original crimes in the Constitution were piracy, treason, and counterfeiting. Clearly, abortion was meant to be something the states would decide on. The states may have different interpretations of whether it counts as murder. The undermining of the Tenth Amendment that has occurred is an attack on federalism.

The Future

Ideally, society should not tolerate abortion (with obvious but sad exceptions where the mother and fetus’ life are both in danger). This is the ultimate goal of the pro-life movement. However, the first step is to repeal Roe v Wade, which the Supreme Court can only do on a constitutional basis. Until then, no law against abortion will stand. Thus, overruling this is absolutely necessary to achieve the ultimate goal. Even if someone may be pro-choice, they should support repealing Roe v Wade because of its unconstitutional nature.

The abortion debate is just as much a moral one as it is a legal one. There must be a shift in society towards a value of life. Once Roe is gone (if it ever is), a new debate may come up; could we use the 14th Amendment to guarantee that the law protects the unborn, as well? Though a bright future, it appears still to be far away.


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