Myth #3: Roe v. Wade made abortion legal

This is the Third Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

Ask just about anyone on the street what the significance of Roe v. Wade is, and most likely the response will be, "It made abortion legal."

Problem is, the federal courts do not have the power to legislate from the bench, or negate State laws over issues the federal government has no authority over.

The long and short of it all is that abortion is a state issue.

Sure, on the moral level I believe that a child's life begins at conception. Evidence shows that a fetus feels pain. The heartbeat begins at 21 days. At less than four weeks the little fingers are distinguishable. In my personal opinion, abortion is America's own genocide.

But my argument goes farther than merely my moral opinions. Setting aside morality, religion, and anything else in the coffer, what it all really comes down to is the law. After all, we say that this is a nation of laws, and that our government is supposed to function under the rule of law. So, let's consider what the law says.

Roe v. Wade was a Supreme Court decision that overturned a Texas state law that made abortion illegal in the State of Texas. The Supreme Court, in their ruling, held that a woman, with her doctor, could choose abortion in earlier months of pregnancy without restriction, and with restrictions in later months, based on the right to privacy. The date was January 22, 1973.

The Roe v. Wade decision invalidated all state laws regarding abortion during the first trimester of pregnancy. State laws limiting abortion during the second trimester were ruled by the courts as acceptable as long as those limitations were for the purpose of protecting the health of the pregnant woman.

The opinions of the justices used the Ninth Amendment to the United States Constitution as the basis of their decision. By doing so, they labeled abortion to be a "right," and the Ninth Amendment basically indicates that just because a right is not listed in the Bill of Rights for protection, it doesn't mean that the right does not exist, or that the right can be violated by the government.

Text of the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The "Roe" in the case was Norma McCorvey. She alleged that the abortion law in Texas violated her constitutional rights and the rights of other women. McCorvey has since changed her mind about abortion, and is now a vocal pro-life advocate.

Is abortion a right? One must then ask, "What about the right of the child to live?"

Pro-abortion forces have determined that the unborn child (fetus, zygote) is not alive, therefore the unborn child has no rights.

The next question asked then must be, "Does the Bill of Rights apply to the States?" The original intent is that the Bill of Rights only applies to the Federal Government. There is an argument that the 14th Amendment, however, changed that so that the first ten amendments to the Constitution does apply to the States, and in fact, the original drafter of the 14th Amendment had that in mind. However, the Congressional record shows that during the five months the 14th Amendment was debated, the Congress decided that they should stick to the original intent of the founders, and not enable the 14th Amendment to apply the Bill of Rights to the States. If that still holds true to this day, then that would mean the Ninth Amendment is not applicable in this case.

Studying the Constitution, we find that nowhere else is there anything that remotely gives the federal government the authority to make laws, or for the courts to rule on, issues like abortion, medical procedures, or anything else that has to do with such personal decisions. And if that is the case, then pursuant to the Tenth Amendment, abortion is a State issue. That would mean the federal courts could not constitutionally hear the case, and the Texas State Supreme Court would have final say - and that court had held up the law in question.

From a constitutional standpoint, the federal courts had no authority to take the case, rule on the case, overturn a State law, nor make abortion legal with a ruling. Therefore, the obvious conclusion is that technically Roe v. Wade did not make abortion legal, or at least it shouldn't have.

Currently, Mississippi Senator Roger Wicker's "Life at Conception Act" (S. 91) is tackling abortion from a more constitutional point of view, by working to determine life begins at conception, and if that is the case, the 14th Amendment would come into play through its equal protection under the law clause. In other words, if the unborn are living, and you have a right to not be murdered, that right would also need to be legally extended to the unborn.

-- Political Pistachio Conservative News and Commentary