Can we talk about how the law concerning abortion should work, without getting into whether abortion itself is acceptable or not?
Let’s try, by shifting the focus to another topic: COVID.
Current President Joe Biden or former President Donald Trump could not just order everyone in the country to be vaccinated against COVID.
The Constitution limits the powers of the federal government.
Here is an almost always overlooked limitation: 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.
That is the text of the Tenth Amendment to the U.S. Constitution. Nowhere in the Constitution does it mention medicine or abortion.
Who has authority over medical matters? States, not the feds. Doctors are licensed by states. So are hospitals. COVID mask mandates are imposed or rejected by states.
Now let’s swing back toward the Constitution and abortion, without calling abortion itself good or bad.
Some who oppose abortion claim that it is murder. Abortion clearly does involve killing.
Which government has first-level authority over deciding what is murder or what is not murder, e.g., justifiable homicide? State government does. The federal government can prosecute killers of federal officials and similar situations, such as crimes on military bases. But for most murder cases, state courts make the decisions.
That was the case before Roe v. Wade was decided in 1973. But that Supreme Court decision was based on a fictitious interpretation of the Constitution. The Supreme Court claimed that the Constitution enshrines a “right to privacy.”
No, it does not.
There is no federal-level right to privacy, either in the Constitution or in federal statute law. There are privacy laws — passed by state governments, not the federal government.
Now, nothing said above is an argument in favor of legalized abortion — or against it.
We aren’t talking here about whether abortion should be legal or illegal. We are talking about who should make those decisions.
The United States Constitution, by its silence on matters of medicine, murder and privacy, makes it abundantly clear that under the Tenth Amendment, the authority to regulate abortion rests with the 50 states.
Yes, the Supreme Court decided Roe v. Wade in favor of legalizing most abortions — not by making abortion legal throughout the entire country (Congress would need to do that) but by throwing out the state laws then in effect that limited abortion.
The court was wrong. It’s not the first time.
In an earlier century, the Supreme Court, via its Dred Scott decision, also decided that slavery was legal.
After the Civil War, the Constitution was changed via amendment to give the federal government the authority to outlaw slavery.
If the federal government wishes to legitimately regulate abortion, it should do so either by a statute law enacted by Congress (and reviewable by the courts) or by a Constitutional amendment that, once enacted, can be regulated by courts but not ignored by them.
We can’t have it both ways. For 50 years we have pretended that we could — and the issue continues to divide Americans.
Abortion is the most contentious issue to grip America since slavery.
The Supreme Court has an opportunity to throw out Roe v. Wade and get rid of a legally awful ruling that stands the Tenth Amendment on its head. A “fake news” right to privacy does not exist at the federal level.
If, as I hope, the court does invalidate Roe v. Wade, then the Pennsylvania Legislature gets to decide how abortion should be handled in Pennsylvania. Other states’ lawmakers would make those decisions, just as state-by-state decisions are made about, for example, driver licenses, hunting licenses — or whether murderers sentenced to life in prison should be eligible for parole. In Pennsylvania today, they are not. In other states, they are.
Supporters of Roe v. Wade claim that it would be a nightmare to have 50 separate laws on abortion.
Why? Some states permit capital punishment. Other states do not. Some states barely regulate the right to carry concealed handguns. Others almost forbid it.
Having separate state laws gives all Americans the opportunity to see how the laws work in those states, and move toward something of a consensus as to how a given issue should be handled. We have largely done that with respect to driver licenses. We have not yet reached consensus with respect to gun control.
Well, OK. The nation survives. The laws evolve.
But the Constitution should stand enshrined as the “supreme law of the land,” — which ought to trump the bad law and worse governance of Roe v. Wade, regardless of how we feel about abortion itself.
If the Supreme Court decides soon to get rid of Roe v. Wade, let’s allow or limit abortion the right way, the American way — by having the states make those decisions.
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