Abortion, the Constitution, and S. 91

By Douglas V. Gibbs

If you were to ask someone the significance of Roe v. Wade, most people will respond that Roe v. Wade is the court case that made abortion legal (essentially giving the courts the power to legislate). A portion of these people would go on to tell you how abortion is a woman's right, and nobody has the authority to tell a woman what she can or can't do with her body. Someone like California Senator Feinstein may even go so far as to call abortion a "reproductive right," though the concept of terminating a pregnancy would seem to be the opposite of what one may consider to be "reproduction." In fact, in an Email a friend of mine received recently, Feinstein went so far as to proclaim that abortion is a court protected constitutional right. The funny thing is, I find no place in the Constitution that provides for the allowance of anyone killing another person, born or unborn.

An astute Constitutionalist, at this point, may bring to my attention that the Constitution does not necessarily work that way. In fact, the ninth amendment is careful to remind us that just because a right is not listed in the founding document's text, nor is anywhere in the Bill of Rights, it does not mean the federal government has free reign to trample on that right. Therefore, for some, the argument about abortion can be resolved once it is determined if abortion is a woman's personal right, or not.

Beyond whether or not abortion is a right, and whether or not that alleged right needs to be protected, we must ask ourselves if the federal government has any authority over the issue. As far as I can tell, the U.S. Constitution has no provision in it authorizing the federal government any power over that issue, be it legislatively, judicially, or in any other manner. Feinstein, however, claims the issue of a "woman's right to abortion" is constitutionally protected, citing that the "Supreme Court has ruled access to both abortion services and emergency contraception are guaranteed by the Constitution."

The liberal left believes that the Constitutionality of anything is decided by case law. Judges, the Left contends, have the authority to interpret the Constitution. However, this is a false belief. Judicial Review is a power seized by the courts, without permission from the States. Marbury v. Madison contained John Marshall's opinion that the federal courts have the authority to determine if a law is constitutional or not, rather than the States, as originally intended. But when one keeps in mind that the whole purpose of the Constitution was to create a federal government that would protect, preserve, and promote the union, and then be limited in all other authorities, leaving the remaining powers to the States, it does not seem reasonable for the federal courts, which are a part of the federal government, to determine for the itself what its authorities are through Judicial Review. That is like letting the fox guard the hen house.

So, if the federal government, which includes the federal courts, does not have the authority over the issue of abortion, that would leave the powers over this issue to the States, per the Tenth Amendment.

If abortion is a State issue, that would mean that Roe v. Wade is unconstitutional (illegal ruling). But if the federal government doesn't have the authority to legalize abortion, then the federal government can't ban abortion, either, right?

Not necessarily.

Enter, stage right, Mississippi Senator Roger Wicker's "Life at Conception Act" (S. 91). The legislation, should it pass, would define human life as beginning at the moment of fertilization. By defining life as beginning at conception, the legislation would prohibit abortion across the country. By determining that life begins in the womb, the unborn babies of America would be considered to be alive, giving them full constitutional protections, which would include equal protection as per the 14th Amendment - which would protect them from being treated differently from all other Americans, and all other Americans are protected against being murdered.

Justice Blackmun, in his opinion regarding Roe v. Wade, gave us that out. He indicated that once the beginning of life was defined, abortion may end up banned.

In short, the federal government does not have the power to authorize the killing of the unborn, but they do have the authority to ensure that all people considered alive are equally treated under the law. Therefore, Feinstein is right, Senator Wicker's S. 91 would prohibit abortion, and his bill would accomplish that feat constitutionally.

-- Political Pistachio Conservative News and Commentary

BLACKMUN, J., Opinion of the Court, SUPREME COURT OF THE UNITED STATES, 410 U.S. 113,
Roe v. Wade