Posted by
Jason Cunningham on Thursday, June 07, 2007 4:59:14 PM
Perhaps the silliest thing concerning abortion, if any aspect of it can be called silly, is that the current debate over it’s constitutionality is built on the wrong starting point.
In Roe, the Supreme Court decided that the Constitution provides for a woman’s right to an abortion. Were they right? Well, yes and no. Amendment 10 to the Constitution, in laymen’s terms, says that any power not specifically granted to the government by the Constitution, or prohibited to the states, is to be left to the states to decide as they will. Now, if you read the Constitution, and also take into consideration the priorities of the Founders, as well as the time in which they lived, it’s clear that the document ignores the issues of health care and sexuality in general, abortion in particular, in regard to both the government and the states, and that it does so because these issues weren’t critical in the process of forming our republic. Since that is the case, then according to the Tenth Amendment, these issues should be left to the states to decide. That means that each state, by referendum or through its elected representatives at the state and/or national levels, should have the opportunity to decide the issue of abortion for itself. But the Supreme Court, in its Roe decision, denied us this opportunity. Even though I disagree with abortion, I recognize that every person in every state should have a right to weigh in on this matter – does have that right under a properly interpreted Constitution. That being said, it’s true that women do have a right to an abortion – if the majority of people in their state take that side of the issue. If, however, the majority in that state opposes abortion, then women in that state do not have that right.
You see, there’s a great difference between saying that the Constitution allows for something, and saying that the Constitution prohibits the disallowing of that thing. That’s the mistake the Supreme Court made in Roe – they were right to say that abortion could be allowed, but they were wrong to say that it had to be allowed, that it cannot be disallowed. According to the Tenth Amendment, it’s up to the people to decide the issue, and they can decide in either direction. In fact, the very phrase upon which abortion is constitutionally justified – “no one shall be deprived of life, liberty or property” – also gives constitutional justification to the banning of abortion. The problem is, people either ignore or are unaware of the rest of that phrase. Here it is in full: “No one shall be deprived of life, liberty or property without due process of law” (italics mine). Did you see that? Amazing. People can be deprived of life, liberty or property if there is due process of law. And this happens all the time in our society. For example, we’re deprived of the liberty to legally drive 100 miles an hour on our public roads. You or I may disagree with this law, but it came about fair and square – through due process of law. Likewise, women can be denied, through due process of law, the right to an abortion.
At least, that’s how things should be, but the high court’s flawed logic and misinterpretation of the Constitution have short-circuited this option. And unfortunately, the Roe distortion lives on in the minds of many – most, I daresay. People are, in one sense, debating the wrong question: While I agree that the question of abortion’s rightness or wrongness is the chief moral concern, the question we should be pressing, from a Constitutional perspective, is whether the banning of abortion, as well as the allowance of it, is constitutional, and the answer to that is “yes.”