Roe v. Wade

I’m going to make a very astounding argument: everyone, even people who are pro-choice like me, should support overturning Roe v. Wade.

See, the problem with Roe v. Wade is that the Supreme Court overstepped their Constitutional authority. The Supreme Court has jurisdiction in all cases under the US Constitution, but as far as the states are concerned, their jurisdiction is limited to:

  • Controversies between two or more States;
  • between a State and Citizens of another State
  • between Citizens of different States;
  • between Citizens of the same State claiming Lands under Grants of different States, and
  • between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Notice that nowhere is the Supreme Court given jurisdiction in controversies between a state and a citizen of that state. In such a case, the only way the Supreme Court can have any jurisdiction is if it’s a controversy under the US Constitution. States are allowed to do what they like, as long as it isn’t specifically prohibited by the Constitution.

Roe was brought into Federal court under the 14th Amendment’s guarantee of due process. The argument was that the law in question violated due process and thus was not permitted under the Constitution. But in the Roe decision, the Supreme Court went beyond the Constitution and the due process clause. They ruled that abortions in the first trimester were to be left to medical judgment, after the first trimester to viability may be regulated by the state, and after viability may ban abortions except to save the life of the mother.

If they were merely going by the Due Process clause, they would have just said that any abortion that violates that clause is unconstitutional and left it at that—just as a law against murder that violated due process would be overturned, without declaring that no laws against murder could ever be made. Specifying what the states could do at different trimesters meant that the Supreme Court took it upon themselves to decide issues that should absolutely have been left to the states, as the Constitution gives no power to the Supreme Court to decide such controversies.

Justice Rhenquist, in his dissent, pointed out a number of problems. He cited the Liverpool case, which said that the court should never “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Yet, this is exactly what they did.

More to the point, he wrote: “The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this…But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and…the Court’s opinion…is far more appropriate to a legislative judgment than to a judicial one.”

Folks, I’m 100% pro-choice. I don’t think a War on Abortion will work any better than the War on Drugs. But I’m also 100% against any branch of the Federal government usurping unconstitutional authority.

I also think that the issue of abortion will always be contentious like this as long as this decision stands. The left will continue to cry “Woman’s body, woman’s right to choose!” (funny how they don’t seem to think that way with drugs or prostitution) with all the dogma and zeal the right uses to cry out against abortions. Each side will continue defending their beliefs with equally religious fervor, and will continue to abandon rational discourse.

I sincerely believe that if the Federal government hadn’t been waging this idiotic War on Drugs, that most states would have legalized drugs by now. But by the Federal government usurping unconstitutional power here, they have all but stifled debate, and made state laws legalizing medical marijuana and possession of small amounts of marijuana (baby steps in the right direction) almost entirely irrelevant. The same could be said for the abortion issue.

With a Federal monopoly dictating that there’s only one way of doing things, regardless of whether or not it comes from Congress or the Supreme Court, public debate is stifled and the people are divided when they should be trying to unite themselves.

With fifty states running fifty different experiments, we would see progress. I believe that people who are pro-life would see, in the states that ban abortion, how insane and nonsensical such an idea is, and how other liberty-based ideas are more effective. Conversely, people who are pro-choice, no longer having to defend what is in effect a religious belief (every bit as much as the pro-life side), would be motivated to unite with the others to bring about those liberty-based solutions.

Force divides. Freedom unites. It was always thus, and always thus will be.

This was submitted to Lincoln Times-News but never published.

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