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Abortion is not a federal matter until the Constitutional is amended accordingly

Posted by John T. Reed on

I do not care if Roe v. Wade lives or dies. The decision invalidated a TX law that outlawed abortion. There is no mention of abortion in the Constitution. The 1973 court said the right to an abortion comes from the Constitutional right of privacy. I don’t see the word privacy in the Constitution either.
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It is not there. Wikipedia says "The Right to Privacy" (4 Harvard L.R. 193 (Dec. 15, 1890)) is a law review article written by Samuel Warren and Louis Brandeis, and published in the 1890 Harvard Law Review. It is "one of the most influential essays in the history of American law" and is widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a "right to be let alone."
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That was an 1890 law review article, not the 1789 Constitution or even a common law court decision.
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Justice Ginzburg has rightly criticized Roe v. Wade (https://www.nytimes.com/2005/11/29/politics/judge-ginsburg-still-voices-strong-doubts-on-rationale-behind-roe-v.html):
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“Judge Ginsburg's critique of Roe v. Wade is twofold. First, she said in the New York University lecture, as she has written for years, the right to abortion might have been more secure had it been grounded in the concept of women's right to equality rather than in the right to privacy. "The Roe decision might have been less of a storm center," she said, had it "homed in more precisely on the women's-equality dimension of the issue."
 
“Given the fact that the right to privacy has become little more than a code word for abortion in current political discourse, it might appear startling to divorce abortion from privacy and seek a home for abortion rights elsewhere in the Constitution.
 
“But the equality argument for abortion rights -- essentially the notion that women cannot participate in society equally with men without the ability to control their reproductive lives -- was in fact part of the abortion-rights movement from its earliest years. An equality argument was among the arguments presented to the Court in Roe v. Wade.
 
“While Justice Harry A. Blackmun's majority opinion took a different path, a theoretical debate continued in academic legal circles throughout the next decade. Judge Ginsburg, who as a litigator arguing cases before the Supreme Court had helped create the modern constitutional law of women's equality, continued to press for equality.
 
“The argument at times became bitter because of a new element: the proposed equal rights amendment to the Constitution. Some leaders of the long and ultimately unsuccessful campaign for the amendment were concerned that too close a link between equality and abortion would pose a political threat to the E.R.A. by driving away potential supporters of the amendment who did not share the abortion-rights agenda.
 
“In any event, long after the equal rights amendment died and the argument faded into history, it was the Supreme Court itself that revived the equality basis for abortion rights in its ruling last year in Planned Parenthood v. Casey, the Pennsylvania case in which the Court reaffirmed the right to abortion. Sticking to the 'Core'
 
“Among the reasons that Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter gave in their opinion for adhering to the "core" of Roe v. Wade was a sentence that could have been written by Judge Ginsburg: "The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives."
 
“The second part of Judge Ginsburg's critique concerns the scope of Roe v. Wade, and it is this part that has made some abortion-rights leaders, including Kate Michelman of the National Abortion Rights Action League, somewhat wary. Judge Ginsburg has argued that by issuing a broad ruling that swept most state abortion laws off the books, the Court created an inherently vulnerable precedent that led to a backlash and short-circuited a liberal trend then under way in the states.
 
“While her New York University lecture discussed Roe v. Wade specifically, her critique reflected a more general approach to judging and to the development of the law. "Measured motions seem to me right, in the main, for constitutional as well as common-law adjudication," she said. "Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable." She praised the Court's opinion last year in Planned Parenthood v. Casey for opening a "renewed dialogue" between the states and the Court.”
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I, John T. Reed, do not know whether abortion should be legal or illegal. It is an extremely thorny moral dilemma that no amount of study or analysis will resolve.
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I DO know that the idea that the right to an abortion is based on invisible rights of privacy in the Constitution is total bullshit. I also know for sure that until the Constitution is amended to address the right to an abortion, the U.S. Supreme Court has no business deciding whether the right to an abortion is constitutional or not. There should be a one-sentence 9-0 decision noting that the issue is not discussed in the Constitution, therefore there is no basis for saying that Americans have or do not have the right to an abortion. There is also no basis for saying that the U.S. Supreme Court or the Congress has jurisdiction over the matter.
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The Xth Amendment says that “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.”
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In other words, state legislatures are the ones to decide whether abortions are legal. That mean the Roe decision was wrong. TX DOES have the right to ban abortions. And those who are unhappy about TX or any other state banning abortion have two recourses: vote for candidates for the TX legislature who will vote for a right to an abortion right statute or get 3/4 of the states to ratify a Constitutional amendment granting the right to an abortion.
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It was improper for the SCOTUS to decide Roe v Wade. Taking that case and deciding it violated the Xth Amendment.
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I am neither pro- nor anti-woman. The matter is one of Constitutional law. And at present, neither the Congress nor the Supreme Court has jurisdiction over abortion.
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I will also note that abortion is one, rather radical and unnecessary “solution” to the problem of an unwanted pregnancy. The other better solutions are:
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• abstention
• safe sex meaning use of a condom or diaphragm or taking the birth control pill
• the morning-after pill
• putting the baby up for adoption.
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There are now and have long been various jurisdictions within the U.S. and in foreign countries that permit abortions. Visit one if you are not already in one.
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All this shrieking about retaining Roe v. Wade is irrational, dishonest, and unconstitutional, as was the original Roe v. Wade decision. All this talk of “choice,” “life,” “woman’s body” without mentioning the fetus’ body, “women’s access to health care” are a pack of intellectually dishonest debate tactics. Pro-abortion people ignore the fetus; anti-abortion people ignore the mother. Both exist and must be taken into account.

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