Balance and compromise are the essence of democracy

If you have studied civics or American government in school, you know that our federal government has only those powers expressly delegated to it by the Constitution. All other powers are reserved to the states or to the people. The federal government was created to do only those things that the states found that they couldn’t do for themselves.

As such, the federal government is not “presumed” to have powers. It has only those powers “specifically delegated” to it.

If you scrutinize our U.S. Constitution and its Bill of Rights, you will not find the word “abortion.” The Constitution nowhere says, “Every woman has a right to choose abortion.” So, how did “abortion” come to be a Constitutional Right?

The Constitution itself prescribes the mechanism for its amendment.

“Amendments, … shall be valid … when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ….”

Twenty-seven amendments have been to our Constitution. Do any of its 27 amendments mention the word “abortion?” The answer is, “No.”

So, how then did “abortion” come to be a “constitutional right?”

Abortion came to be a “constitutional right” in 1973 when seven justices of the U.S. Supreme Court said so.

Mr. Justice Blackman, author of the majority opinion in Roe v. Wade, wrote that a woman’s right to choose to abort her fetus has its basis in the right of “privacy.”

Blackman, however, began by acknowledging that “The Constitution does not explicitly mention any right of privacy.”

“In a line of decisions, however, going back perhaps as … [1891], the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment …; in the Fourth and Fifth Amendments …; in the penumbras of the Bill of Rights …; in the Ninth Amendment …; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment … . These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty… are included in this guarantee of personal privacy.”

The court then concluded

“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

Thus, in the absence of clear language in the Constitution or in its Bill of Rights, the seven-member majority discovered a “constitutional right” to abortion lurking somewhere “in the penumbras of the Bill of Rights” or “'implicit in the concept of ordered liberty.”

Because I believed that our Constitution and Bill of Rights must be construed consistently as they would have been construed by the people who adopted it, from the day Roe was decided, I have
believed that Roe v. Wade was improvidently decided, and was a usurpation by seven judges of the rights of the people to amend our Constitution through their elected legislatures or conventions.

I believe the following questions are dispositive: (1) at the time that our Constitution was written and ratified, did anyone involved in the process believe it was enshrining “abortion as a“constitutional right?” (2) Did anyone believe, at the time our Bill of Rights was adopted, that “abortion” was being protected thereby? (3) Did anyone believe in 1868, when the 14th Amendment was written to prohibit the states from depriving “any person (especially the former slaves) of life, liberty, or property, without due process of law” that it was guaranteeing women the right to abort fetuses?”

Have we a historical record of even one person, at any of those times, arguing that the Constitution, the Bill of Rights or the 14th Amendment “will guarantee women the right to abortion?”

If not, Roe v. Wade was an unconstitutional judicial usurpation.

In 1973, in dissent, Mr. Justice White, wrote 

“I find nothing in the language or history of the Constitution to support the Court’s judgment…

“This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.”

In 1973, I said the Roe decision was wrong. The Court construed two adjoining words in the 14th Amendment: “life” and “liberty.” 

The mother’s “liberty” was construed “expansively.”

The fetus’ “life” was counted for nothing. Dodds v. Jackson allows the people and their 50 legislatures to act to strike the proper balance the fetus’ “life” and the mother’s “liberty.” Balance and compromise are the essence of democracy.

The purpose of our written Constitution and its written amendments was to clearly state, for the whole world to see, the rights of every American, and the powers specifically granted to the national government. If abortion was such a fundamental right, it is remarkable that it wasn’t guaranteed therein, along with our fundamental rights to speak, worship, print and peacefully assemble.

Copyright 2022, John Donald O'Shea

First Published in the Moline Dispatch and Rock Island Argus on July 3, 2022