Roe v. Wade is not about abortion, it’s about State’s Rights
A century later, Roe ruled that the Fourteenth Amendment somehow prevents Americans from doing what the ratifiers of the Fourteenth Amendment actually did.
Protesters on both sides of the abortion debate hold emotionally-charged views, but the issue actually comes down to States’ Rights for determination of social and moral issues held by their citizens. (File Photo: America’s Conservative Voice) _______________________________________________________________________________________________________________
When the Warren Court found a previously undiscovered “abortion right” in the Constitution, it essentially put a knife through the heart of States’ Rights. It was the death blow in a battle that has raged for nearly 200 years, virtually from the founding of the United States of America.
Our Founders and Framers had no desire for a central government in the newly-formed United States of America. The tyranny of George III over the colonies of the New World prior to the Revolution was sufficient to convince the patriots in North America they wanted nothing to do with a monarchy nor a strict rule of some other type that put all power in a single entity or a single government.
Presidents Washington through Jackson were staunch supporters of the separation of powers established in the Constitution, not just among the three branches of government but between the federal and the state governments. It is because of federalism that we do not need a passport to travel from, say, Missouri to Oregon, but once we get there, we are subject to the civil and criminal laws of Oregon rather than those of Missouri.
The wedge that antifederalists used to begin to dismantle the concept of federalism was slavery. From the beginning, slavery was targeted by the North, which even then leaned Left, though not nearly so severely far Left as today’s Fascists ensconced in the Democrat Party.
With the administration of President Martin van Buren, federalism came under attack. He had helped found the Democrat Party in New York state, serving as governor under the banner of the party. He forged an unusual alliance between New York, a very Northern state in politics and ideology, and Virginia, virtually the exact opposite of van Buren’s home state.
That alliance helped get Andrew Jackson elected president and resulted in van Buren being named Jackson’s vice-president in his second term. That catapulted the New Yorker into the presidency when Jackson stepped down.
Though van Buren was a remarkably private man who wrote few letters or dairies ― almost none of which have survived ― his stance on slavery, rarely expressed, was nonetheless clear. He considered it a moral evil.
His enigmatic public actions, however, offer a confusing picture of van Buren’s intent to outlaw slavery. He often appeased Southern slave owners by returning so-called “Freemen” ― escaped African-American slaves who found freedom in the North ― to their Southern “owners” through slave markets just south of the Capitol in Virginia.
Slavery was the first chink in federalism’s armor to come under attack. Van Buren chipped away at it to undermine States’ Rights and establish a strong central federal government that would actually establish federal protection of slavery.
As the years and decades went by, others would gradually tear down the concept stated in the Tenth Amendment that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Despite his reputation as The Great Emancipator, President Abraham Lincoln was actually one of the men who continued the assault on States’ Rights through his prosecution of the Civil War. (Photo: Abraham Lincoln Presidential Library) _______________________________________________________________________________________________________________
Slavery was not the only issue raised by Southern states that seceded, or considered seceding, leading up to the Civil War. In fact, there were seven other issues mentioned in many of the secession declarations of the 11 states that seceded and the declarations considered in four other states that narrowly voted down secession. Those included federal favoritism of Northern shipping companies that Southern mercantile companies were forced to use, rather than being allowed to use startup shipping firms in the South.
Also cited were tariffs charged within the U.S. ― illegally, under federal law ― by Northern shipping companies to Southern businesses for handling their overseas freight. Several other issues related to the States’ Tenth Amendment rights were also addressed.
The Civil War was almost as much about States’ Rights as it was about slavery. Yet once the issue of slavery being illegal in the U.S. was decided with the North’s victory, the assault on States’ Rights continued.
After the economy became a national, industrial economy, the federal government made the dubious argument that it was much better equipped than the states to deal with this change. For much of the nineteenth century, the government pursued a hands-off, laissez-faire economic policy, but it began to take a stronger regulatory role after the Civil War and into the early twentieth century.
The federal government assumed a greater economic role as American businesses and states began trading abroad heavily. Although these events played out over many decades, they reached their high points during the presidency of Franklin Roosevelt (1933–1945).
The Great Depression, brought about by the crash of the stock market in 1929, was one of the most severe economic downturns in American history. Many businesses failed, roughly one-third of the population was out of work, and poverty was widespread.
In response, Roosevelt implemented the New Deal, a series of programs and policies that attempted to revive the economy and prevent further depression. It was the first major effort by the U.S. government to attempt to control the economy at the federal level, usurping both private and state government efforts to manage the local economies in each state.
The New Deal included increased regulation of banking and commerce and programs to alleviate poverty, including the formation of the Works Progress Administration and the Social Security Administration. In order to implement these programs, the national government had to grow dramatically, which consequently took power away from the states.
While the Depression of the 1930s and the collapse of the U.S. and world economies drove this ongoing assault on federalism, it would inevitably spill over into civil and criminal law. This gross undermining of the Tenth Amendment and the abrogation of States’ Rights by the federal government culminated in Roe v. Wade.
Despite claims of pro-abortion activists and the so-called reasoning of the Warren Court in Roe v. Wade, the fact that infants with a heartbeat are alive and human is indisputable. (Photo Illustration: Nora Feldman/America’s Conservative Voice) _______________________________________________________________________________________________________________
Roe is poorly reasoned and carelessly written. First, and most importantly, the outcome of Roe is harmful and unjust. Why? The facts of embryology show that the human embryo or fetus (the being whose life is ended in abortion) is a distinct and living human organism at the earliest stages of development.
"Human development begins at fertilization when a sperm fuses with an oocyte to form a single cell, a zygote," explains a leading embryology textbook. "This highly specialized, totipotent cell marks the beginning of each of us as a unique individual."
It is for this reason that most Americans, while favoring the continuance of the legal abortion, express the desire for severe restrictions on abortion after the first trimester. Almost half of Americans favor the recently-passed “fetal heartbeat bills” ― most of which will go into effect if and when Roe v. Wade is overturned. Several states will then prevent abortion, except when pregnancy threatens the health of the mother, after a heartbeat is detected in the child.
Justice requires that the law protect the equal dignity and basic rights of every member of the human family — irrespective of age, size, ability, dependency, and the desires and decisions of others. This principle of human equality, affirmed in the Declaration of Independence and the United Nations' Universal Declaration of Human Rights, is the moral core of western civilization.
The Roe Court ruled, to the contrary, that a particular class of innocent human beings ― the unborn ― must be excluded from the protection of the law and allowed to be dismembered and killed at the discretion of others. "The right created by the Supreme Court in Roe," observes University of St. Thomas law professor Michael Stokes Paulsen, "is a constitutional right of some human beings to kill other human beings."
After Roe, the incidence of abortion rose dramatically, quickly topping one million abortions per year and peaking at 1.6 million in 1990 before gradually declining to just under 900,000 in 2019. Under the Roe regime, abortion is the leading cause of human death.
More than 59 million human beings have now been legally killed. Abortion has detrimentally impacted the health and well-being of many women ― and men. The gravity and scale of this injustice exceed that of any other issue or concern in American society today.
The second problem with Roe is that it is an epic constitutional mistake. Justice Harry Blackmun's majority opinion claimed that the "right of privacy" found in the "liberty" protected by the Due Process Clause of the Fourteenth Amendment is "broad enough to encompass" a fundamental right to abortion. There is no reason to think that's true.
There is every reason to believe the opinion was meant to undermine States’ Rights. Else there would not be such an effort to make up a “right” out of whole cloth.
"What is frightening about Roe," noted the eminent constitutional scholar and Yale law professor John Hart Ely ― who personally supported legalized abortion ― "is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. … It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."
Justice Harry Blackmun wrote the majority opinion of Roe v. Wade in 1973, defending an abortion right in the Constitution that does not exist. (Photo: Niles Brown/Associated Press Archive) _____________________________________________________________________________________________________
Indeed, "[a]s a matter of constitutional interpretation and judicial method," writes Edward Lazarus, a former Blackmun clerk who is "utterly committed" to legalized abortion, "Roe borders on the indefensible. ... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the … years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."
But Roe is even more ridiculous than most observers realize. The American people adopted the Fourteenth Amendment during an era in which those same American people enacted numerous state laws with the primary purpose of protecting unborn children from abortion. A century later, Roe ruled that the Fourteenth Amendment somehow prevents Americans from doing what the ratifiers of the Fourteenth Amendment actually did.
"To reach its result," Justice William Rehnquist quipped in his dissenting opinion, "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."
That's absurd. "The only conclusion possible from this history," Rehnquist explained, "is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."
Third, Roe is undemocratic. Roe and Doe v. Bolton together struck down the democratically decided abortion laws of all 50 states and replaced them with a nationwide policy of abortion-for-any-reason, whether the people like it or not and utterly usurping States’ Rights from them.
Of course, the Court may properly invalidate statutes that are inconsistent with the Constitution ― which is the highest law. But Roe lacked any such constitutional justification.
Justice Byron White, a dissenter in Roe, explained the problem in his dissent in Thornburgh v. American College of Obstetricians & Gynecologists. "[T]he Constitution itself is ordained and established by the people of the United States," he wrote.
"[D]ecisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people's authority, for such decisions represent choices that the people have never made, and that they cannot disavow through corrective legislation."
In other words, Roe defied the Constitution, specifically the Tenth Amendment and other laws that the American people agreed upon—and imposed the will of the unelected Court instead.
The radical ― and frequently unrecognized or misreported ― scope of the Roe regime, moreover, was not and has never been consistent with public opinion, which favors substantial legal limits on abortion. Millions and millions of Americans disagree with the abortion policy the Court invented. They want to have a say. The Court decided they could have none ― despite what the Tenth Amendment clearly states.
Equally poorly reasoned as Roe v. Wade, Obergefell v. Hodges, which in 2015 granted a previously unknown “right” to same-sex marriage, may come under scrutiny as a violation of States’ Rights if Roe is overturned. (Photo: Starr Hampton/The Washington Times) ______________________________________________________________________________________________________________
The Roe court violated the Tenth Amendment, justice, democracy and just plain common sense. It wasn’t the last time, however.
The majority’s opinion in Obergefell v. Hodges ― in which five justices found a reason to violate the will and desire of over half the American people, numerous states, as well as the Tenth Amendment ― represents an unacknowledged quantum shift in the country’s structure and institutions. One of the most illuminating elements of the majority’s opinion is what isn’t mentioned: Not a single reference to federalism.
While this case was nominally on the topic of marriage, the substance of the questions came down to fundamental issues of federalism. In the absence of an explicit Constitutional grant of federal power to define marriage, on what basis should the States’ traditional power under concepts of federalism ― to be the sole arbiter of who can be issued a marriage license ― be upended?
The majority ignored the question in the same way it ignored the will of a supermajority of states that had put the question of same sex marriage to a vote and had chosen to not recognize such a right. Rather, scraping the hoary residue of penumbras and emanations, the majority cobbled together a new fundamental right for same sex couples to receive marriage licenses.
While the majority was less than forthright in explaining what this new fundamental right consists of and where the right begins and ends, it was quite unabashed in acknowledging where its power to create this right came from.
The majority brushed aside the fact that the people of the states have consistently and overwhelmingly voted to reject appeals for a right to same sex marriage and with unprecedented disdain for the foundational structure of the nation’s institutions.
These five justices violated Constitutional principles of separation of powers to set the Court up to be the sole and omnipotent voice on what constitutes liberty interests in this nation. In so doing, the Court has done the equivalent of poking the people in their collective chests, as if to say “Federal power grab? Do something about it.”
To be sure, it is within the power of the Supreme Court to recognize fundamental rights. However, in this case the Court openly defied the considered decisions of the people to arrive at this new right. As the dissenting justices made clear, the Court cannot substitute the desires of five judges for the expressed will of hundreds of millions of citizens.
As in Roe, however, they did just that. In doing so, they have killed federalism and permanently endorsed the concept of Big Centralized Government. It sets the stage for Big Brother to simply declare an end to our nation and establish something Adolf Hitler and Josef Stalin would embrace.
Mike Nichols is an advocate of the counterrevolution with a four-step plan to defeat Leftist Fascism: We Organize. We Stand. We Resist. We Fight. He is a regular contributor to several conservative news websites and has a regular blog and Facebook presence at Americas Conservative Voice-Facebook.