The Social Reformer’s Definition of Life (Roe v. Wade, revisited)




by Diane Rufino

Demeaning the ‘Sanctity of Life’ for an enhanced ‘Quality of Life’ 

“One day, I walked into an operating room, to just be an observant, which we would do generally, as a medical resident. It was the 1960’s and abortion was still legal. They were performing this hysterectomy, which was a caesarean section. And they lifted out a fetus that weighted approximately 2 pounds, and it was breathing and crying and struggling to breathe. And it was put in a bucket and set in the corner of the room, and everybody in the room just pretended that they didn’t hear it. Soon the crying stopped. And the baby died. And I walked out of that room a different person. That same day in the OB suite, an early delivery occurred and the infant boy was only slightly larger than the one that was just aborted. But in this room everybody did everything conceivable to save this child’s life. My conclusion that day was that we were overstepping the bounds of morality by picking and choosing who should live and who should die. There was no consistent moral basis to the value of life under these circumstances. Some people believe that being pro-choice is being on the side of freedom. I’ve never understood how killing a human being, albeit a small one in a special place, is portrayed as a precious right.”   (Ron Paul, Liberty Defined, pg. 1 and the Natural Right Convention 2007)

On Monday, January 23, thousands of pro-life supporters marched on Washington DC in the freezing rain to show their lend their voice to those who have no voice of their own – the unborn.  In the struggle for rights and recognition, those most fragile and innocent among us look to those with a conscience and a heart to speak for them.  Doctors and lawyers have let them down.  Politicians have let them down. And in too many cases, their very mothers have let them down. But in the end, in the tribunal that mattered most (except in the kingdom of heaven, of course), the exalted Justices of the Supreme Court let them down. They minimized them, just as the others have. Next year, January 22, 2013, will mark the 40th anniversary of the Roe v. Wade decision, which held that abortion is a fundamental right guaranteed by the Constitution under an implied right to privacy and thus established the notion of abortion-on-demand. The 1973 U.S. Supreme Court announced nationalized abortion law, prohibiting states from deciding on the matter, and leaving the unborn defenseless.

For almost 40 years, nine unelected men and women on the Supreme Court have allowed themselves to play God with innocent human life. As Rand Paul puts it, “They have invented laws that have condemned 56 million babies to painful deaths without trial for the crime of being “inconvenient.” Yet President Obama, who is staunchly pro-abortion, proudly announces that “America doesn’t torture.”

The Roe v. Wade decision has been hailed as a great decision for the empowerment of women and the right of women to decide matters involving her body and fertility, yet while they celebrate the enhanced ‘quality of life’ for women, they demean the ‘sanctity of life.’  The truth of the matter is, the high court’s decision wasn’t so much about respecting “Life and Liberty” as it was about serving the social goals of the women’s rights movement and the increase in unwanted pregnancy and uncontrolled population growth.  Ron Paul has said: “As an obstetrician, I know that partial birth abortion is never a necessary medical procedure. It is a gruesome, uncivilized solution to a social problem.”

Currently, about 90% of abortions are done in the first trimester of pregnancy.  But abortions in the third trimester and even moments before delivery are currently legal as well.  Consider what would happen to that same woman if, one minute after birth, she should dispose of that newborn in a dumpster.  She would rightfully be charged with murder, right?  Note the inconsistency.

Conservatives believe that a fetus has a right to life because it is a person from the very moment of conception, or because it is a ‘potential’ person. Liberals deny that a fetus has a right to life because it is not a person. Moderates believe that although a fetus is not a living being from the moment of conception and therefore doesn’t immediately have a right to life, it does acquire that right at some point in its development (usually sometime in the second trimester).  The law, established by Roe v. Wade, says that even if the fetus acquires a right to life because it has become a “person,” such a right is trumped by a woman’s right to do what she wants with her body.

The term “abortion,” as offered in the Roe decision states: “the life of the fetus or embryo shall be destroyed in the woman’s womb.”  Note that the very definition of ‘abortion’ verifies that life is destroyed.  And that brings us to the question: “What is Life?”  Lawmakers and judges struggle to define it, but perhaps it should not be in their domain, because as they try to define it, they often manipulate its definition and meaning and then proceed to devalue it.

Tim Radford wrote this in his article What is Life: “Living things do not die: they begin again, from a tiny cell, and scavenge the dust, the air and water, to find the elements necessary to fashion an aspidistra, an elephant, or an attorney-general, using only the raw materials at hand and energy from a thermonuclear reactor 93 million miles away (the sun). The freshly-minted, self-replicating organism then grows up, grows old and melts away, but not before imparting a fragment of itself to generate yet another copy, but not an identical copy. The process is visible and transparent, everywhere on the planet, but it is ultimately mysterious….   Life looks after itself.”

I think that is what Jesus teaches us – to respect life.  And to do so with love and compassion.

But as our government effectively uses the “wall of separation” concept to squash ‘religion’ in favor of ‘no religion,’ and powerful atheist elements of our country use the no-religion environment established by our government to push a liberal, free-for-all human existence, ‘quality-of-life’ supersedes the ‘sanctity of life.’  Our own president, Barack Obama, praised the Roe v. Wade decision as recognizing the “fundamental constitutional right” to abortion and to “continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.”  On this year’s anniversary of the decision, Obama chose these words:  “As we mark the 39th anniversary of Roe v. Wade, we must remember that this Supreme Court decision not only protects a woman’s health and reproductive freedom, but also affirms a broader principle: that government should not intrude on private family matters. And as we remember this historic anniversary, we must also continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.  And I remain committed to protecting a woman’s right to choose and this fundamental constitutional right.”

While serving in the Illinois State Legislature and now as president of the United States, Obama has consistently taken a hard line on abortion rights.  As a legislator in Illinois, he voted four times AGAINST legislation to protect the life of a baby that survived a botched abortion, in 2001, 2002 and 2003.

As President, Obama has emphatically stated that America doesn’t torture. It won’t tolerate the torture or mistreatment of terrorists.  But the physical trauma that an unborn undergoes in order to be aborted and then killed is beyond anything that we can comprehend.

If the intentional killing of a baby born live isn’t the very definition of murder, and first-degree murder at that, I don’t know what else can be. And by a physician no less.  The Hippocratic Oath stands for the simple premise to “do no harm.”  The modern version of the Oath states: “Above all, I must not play God.”  As Doctor Paul (aka, Rep. Ron Paul) frequently explains:”I was taught that for each pregnancy I had two patients.”

‘Playing God’ occurs when one person believes he has the power or authority to decide who lives and who dies, often without the force of law, such as making a decision to take someone off life support or targeting someone for a thrill kill.

The abortion issue shows no signs of going away.  The controversy has become firmly engrained in our culture and is becoming sharper than ever as we continue to celebrate the enormous civil rights advances for all minority groups except those growing inside another’s womb.  Pro-life supporters hope that the Roe v. Wade decision will not survive to celebrate its 40th anniversary but those who understand that society cannot be burdened with more unwanted, unplanned babies see the decision as the green light to manage population growth.  Whether you hate or applaud the decision, the Supreme Court certainly put a lot of time and effort into coming up with the ruling, but not necessarily doing so by strictly interpreting of the US Constitution. To look carefully at how the Court came up with its decision is to understand the angle it took in sorting the issues.

The plaintiffs in the case included Texas residents Norma McCorvey, who used “Jane Roe” as an alias, and Dr. James Hallford, a licensed physician. In 1969, Norma was 21 years old, possessed a 10th-grade education, and was pregnant with her third child. She wanted an abortion but a Texas statute prohibited them except in instances to save the life of the mother.  She was too poor to get an illegal abortion in Texas or a legal one in California. Her friends advised her to assert, falsely, that she had been raped because then she could obtain a legal abortion. (There was such a provision in the Texas statute).  But the plan failed  because there was no police report documenting the alleged rape. She nonetheless attempted to obtain an illegal abortion, but found that the facility was shut down by police.  Dr. Hallford was a licensed physician whose practice was suffering because he could not perform legal abortions and who had two pending state abortion prosecutions pending against him. In March, 1970, McCorvey filed a lawsuit on behalf of herself and “all other women similarly situated,” along with Dr. Hallford (and others).  By the time the case was finally heard, McCorvey had given birth and so the case was dismissed for lack of standing and the Texas abortion law was reaffirmed.

Although McCorvey had given birth (and put the child up for adoption), she nonetheless appealed her case to the Supreme Court. As we all know, the question before the Court was whether the Constitution embraces a woman’s right to terminate her pregnancy by abortion. Now, before reading any further, dwell on that last sentence. What would your gut feeling tell you?   An abortion…  a violent act, a traumatic act to a living human being growing and developing inside its mother.  Would you think the Constitution embraces that right?

The Supreme Court held that it does.  In a 7-2 decision, the Court held that while there is no express right of a woman to have an abortion, the right falls within the right to privacy. The thing is, there is no express right of “privacy” in the Constitution.  But the Court had already gotten around that in 1965, in Griswold v. Connecticut,  by reasoning that many of the rights expressly granted and protected by the Bill of Rights are grounded in a fundamental right to privacy. In Griswold, the Court was asked whether married couples have the right to use contraceptives, and in reaching the decision that it does, the Court reasoned that it must fall within the “penumbra” of privacy rights. “Penumbra” refers to those rights guaranteed by implication in a constitution.  (Activist judges will use it to refer to the ‘implied’ powers of the federal government or its laws).  The Supreme Court was able to hold that the right to privacy is an implied basic human right because privacy underlies many of the express fundamental rights in our Bill of Rights.

Appellants (challengers) Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, director of the PPL’s office in New Haven and also a professor of Medicine at Yale Medical School, were convicted for prescribing contraceptive devices and giving contraceptive advice to married persons in violation of a Connecticut statute which prohibited contraception. The statute read:  (i) “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.  (ii) Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”  Griswold and Buxton challenged the constitutionality of the statute on behalf of the married persons with whom they had a professional relationship.  The Supreme Court held that the right of married persons to use contraception is a matter of privacy. (Marital privacy). Writing for the Court, Justice Douglas stated that the specific guarantees of the Bill of Rights have penumbras “formed by emanations from those guarantees that help give them life and substance,” and that the right to privacy exists within this area. The Supreme Court struck down the statute, holding that the Constitution created substantive rights, including privacy, which are so “fundamental to the principles of liberty” that they could not be restricted by government.

To be more specific, according to the Supreme Court, this right of privacy is grounded in the First, Third, Fourth, Fifth, and Ninth amendments. (“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people”). Griswold was the first case that created a right relating to reproduction without naming a specific clause in the Constitution, because, of course, there is no such provision.

In Roe v. Wade, the Court held that a right to privacy under the Due Process clause of the Fourteenth Amendment  extends to a woman’s decision to have an abortion, but that right is not absolute. That right must be balanced against the state’s legitimate interests in: (1) regulating abortions; (2) protecting prenatal life; and (3) protecting the mother’s health.  According to the decision, a woman’s right to control matters involving her fertility and reproduction is strongest in the early months of pregnancy and the state’s interests become stronger as the pregnancy goes on.  The judges therefore used a balancing test and came up with a trimester approach to determine which party’s interests are most important at which time during the pregnancy.

The case was addressed methodically, first looking at the history of abortion, then the problems presented by abortion services not being regulated (‘back-alley abortions”), and finally the general and historical view of when life begins. According to the Supreme Court’s historical analysis, at common law, abortions were performed before “quickening” — the first recognizable movement of the fetus in-utero which appears usually between 16th to the 18th week of pregnancy. That was the time that a “person” was understood to come into being – to become sufficiently ‘formed” or recognizably human.  It was also the time at which the fetus was believed to be infused with a “soul” or “animated.”  At common law, abortion was not an indictable offense.  The so-called authorities on which this early definition was based, and on which the Supreme Court relied, included philosophers, theologists, and civil rights laws.  The Court also claimed that the definition coincides with the canons of the Christian church.  Where was the medical evidence?  “Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that, prior to this point, the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. The significance of quickening was echoed by later common law scholars, and found its way into the received common law in this country.”  [Roe, pg. 134]

By 1840, when Texas had received the common law, only eight American states had statutes dealing with abortion. It was not until after the Civil War that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared, and the typical law required that the procedure actually be necessary for that purpose. Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the states banned abortion in general, except and unless it was necessary to save or preserve the life of the mother. In 1967, Colorado became the first state to legalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical disability of the woman. Similar laws were passed in California, Oregon, and North Carolina. In 1970, New York repealed its 1830 law and allowed abortions up to the 24th week of pregnancy. Similar laws were soon passed in Alaska, Hawaii, and Washington. A law in Washington, DC, which allowed abortion to protect the life or health of the woman, was challenged in the Supreme Court in 1971 in United States v. Vuitch. The court upheld the law, deeming that “health” meant “psychological and physical well-being,” essentially allowing abortion in Washington, DC.  By the end of 1972, 13 states had a law similar to that of Colorado, while Mississippi allowed abortion in cases of rape or incest only and Alabama and Massachusetts allowed abortions only in cases where a woman’s physical health was endangered.

Therefore, the Court claimed, at common law and at the time of the adoption of our Constitution, abortion was viewed with less disfavor than it was after the Civil War and then in the 20th century.  The Court never once entertained the possibility that the medical field understands fetal development better or that medical advances care for pregnancies better now than in earlier times, therefore preserving the health of the mother and not necessitating abortions for those pregnancies that pose a potential risk to her. Furthermore, in the Court’s opinion, “risk of harm” to the mother which would necessarily justify an abortion (in almost all cases) would include stress and emotional and psychological harm. “Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.”  All these are factors that might justify a decision to terminate a pregnancy, according to the Court. [Roe, pg. 153]

Along this line of thinking, then, couldn’t a child who is born, or even a difficult relative, also interfere with this definition of “liberty”?  Does a person have the right to kill an aged parent because of “the stress” and “taxing” of elder care and the problem of trying to provide care when he/she is unable, mentally, psychologically, and physically able to do so?   Does a parent have the right, under this thinking, to kill his/her child who might be born with a disability that makes care so burdensome and stressful as to cause psychological harm?

The Court then went into a discussion of the need to make sure that women get reputable medical care when they go for abortions. They didn’t want them to have to seek back-alley abortions or have to travel from a state where abortion was illegal to a state where it was legal.  And finally, they looked to the Constitution to see if there is even a fundamental right to an abortion such that a woman cannot be denied the ability and opportunity to have one.  That is when they made their famous pronouncement that such a right indeed exists, within another right that is not expressly protected on its own – privacy.  As Justice Blackmun announced in the majority opinion of the Court: “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.”

The Court, however, never looked far enough into the Bill of Rights or in any penumbra of rights to find protection for the unborn. It never showed the degree of concern for them that it showed for women’s rights.  Not even close.

A central issue in the Roe case (and in the wider abortion debate in general) was the question of when human life begins.  Does it begin at conception, birth, or at some point in between?  The Court declined to resolve that issue, noting that: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”  Instead, the Court chose to point out that historically, under English and American common law and statutes, “the unborn have never been recognized as persons in the whole sense” and therefore, they are not legally entitled to the protection afforded by the right to life specifically enumerated in the Fourteenth Amendment.  (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizen of the United States and of the State wherein they reside.”)  So rather than assert that human life begins at any specific point, the court simply declared that the State has a “compelling interest” in protecting “potential life” at the point of viability (which in reality has amounted to ‘little interest’).

In other words, because an unborn child doesn’t fit within the definition of the 14th Amendment, it is not entitled to any rights afforded under the US Constitution.  The Supreme Court reached a very similar decision in the Dred Scott case when it decided that blacks could never qualify as ‘citizens’ of this country and therefore have no rights recognized under the US Constitution.

But the High Court made a key admission, which it conveniently swept under the carpet in reaching its ultimate decision: “If this suggestion of personhood is established, the appellant’s case (Norma McCorvey; aka, Roe, who sought an abortion), of course, collapses, for the fetus’ right to life is then guaranteed specifically by the 14th Amendment.”  [“… nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.”]

Sadly, the Court redefined “life” to mean only babies who have been born. As Justice Blackmun wrote: We are persuaded “that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn. The unborn have never been recognized in the law as persons in the whole sense.”

In assessing the interests at stake when a woman doesn’t want the baby growing inside her, the decision reads:

“The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy. The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.   It is with these interests that this case was concerned. [pp. 151-152]

But the privacy right involved cannot be said to be absolute. A State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. The Court has refused to recognize an unlimited right of a person to do whatever he or she wishes with his or her body.

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.   [pp. 163-165]

And so that’s how  the Court came up with its famous balancing test:

1.  In the first trimester, the state (that is, government) can treat abortion only as a medical decision, leaving medical judgment to the woman’s physician.

2.  In the second trimester (before viability), the woman has the right to have an abortion and the state can assert a legitimate interest to protect the health of the mother (ie, to regulate abortion procedure so that it related to the woman’s health).

3.  After viability (the third semester), the potential of human life can be considered as a legitimate state interest, and the state can choose to “regulate, or even proscribe abortion” as long as the life and health of the mother is protected.

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, violates the Due Process Clause of the Fourteenth Amendment….     This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.  [Roe, pg. 166]

Roe is clearly quite a stretch under the “Due Process” clause of the 14th Amendment.  In fact, I firmly believe it was incorrectly decided under that amendment. The Court stated many years ago that the Due Process Clause protects those liberties that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”  [See Snyder v. Massachusetts (1934), pg. 105]  The reference point was the time period in which the amendment was drafted and enacted, which was 1868. (Valid ratification is still not certain since the southern states were coerced into ratifying the amendment after their defeat in the Civil War).  Liberties “rooted in the traditions and conscience of our people” refers to those which were fundamental in the establishment of our country.  I don’t argue that the rights of privacy are not fundamental.  They are.  Our notions of individual liberty are certainly not so restricted as to exclude the right of marital privacy.  But there can be no understanding or argument that the right to an abortion is one that is “so rooted in our traditions and culture” as envisioned by the drafters of the 14th amendment. There is no understanding that a privacy right can extend to situations that directly involve the brutal denial of rights of another. Alexis de Tocqueville, who compared the embrace of liberty in America to that in Europe in his book Democracy in America, said: “It was never assumed in the United States that the citizen of a free country has a right to do whatever he pleases; On the contrary, more social obligations were there imposed upon him than anywhere else.” [Vol. 1, Chapter V]  Abortion is a woman’s rights movement issue, an empowerment tool, designed to give women greater control over her body and a “get out of jail” free card over certain responsibilities for the purpose of allowing her greater freedom over her time and energies.

Never once does the Court discuss the “Equal Protection” rights of the unborn to the rights and privileges afforded other human beings. The Court acknowledges that there comes a point in the development of the fetus when it becomes a viable human being.  Yet it seems to deny that it is a “citizen” and therefore not entitled to any protections under the US Constitution.  This is similar to what the Supreme Court held for Dred Scott (1857), the slave who sued for freedom when he was moved to a “free” state.  In that decision, the Court held that those of African descent could never be “citizens” and therefore are not entitled to any protectable rights under the Constitution. The Supreme Court seems to have a habit of defining which human beings have rights and liberties.  Our laws need to be enforced with equal justice, not social justice.

Carolyn Gargaro in her article “Roe v. Wade: The Unconstitutional Decision,” wrote:  “Recall the 1857 Dred Scott v. Sanford decision, which declared that slavery could not be prohibited by Congress in any territory of the U.S. and that African Americans were not full persons and not afforded the same rights as “full persons.” Sound familiar? President Lincoln argued that the slaves were persons, not possessions, and that their unalienable right to liberty was protected by the Declaration of Independence unborn. To add to the irony, after the Emancipation Proclamation in 1863, came the Thirteenth (1865) and Fourteenth (1868) Amendments, all which overthrew slavery and the erroneous Dred Scott Supreme Court decision.”  How ironic it is that clause 1 of the Fourteenth Amendment, which was drafted specifically to overturn the law established by the Dred Scott case and to provide citizenship for a class of persons who were ignored, is the very clause used by the same Court to deny citizenship to another class of persons. The Fourteenth Amendment was supposed to protect people from the arbitrary denial of rights.

Justice William Rehnquist also did not believe that abortion was a right reasonably protected under the 14th Amendment.  In his dissenting opinion, he emphasized that the decision by the majority to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one amounts to judicial activism rather than a determination of the intent of the drafters of the Fourteenth Amendment. He wrote:

“The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” [Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); discussing the criteria for those rights that should be covered under the 14th Amendment’s “due process” clause]. Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and “has remained substantially unchanged to the present time.”

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”  [Roe, pp. 176-177]

Justice White dissented as well and wrote: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”  [Roe, pg. 179]  

Why the regulation of abortion should become a federal constitutional issue is a sign of how far our nation has strayed from the initial clear language of our Constitution. Nearly all governmental authority over matters touching on the lives of citizens was left to state governments, to reflect the interests of its citizens. James Madison wrote in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”   The Bill of Rights, which lists those rights possessed by Americans that the government shall not take away, or burden without an absolute necessity, includes the Ninth Amendment, which proclaims that the prior amendments are not meant to diminish the importance of other rights retained by the people, and the Tenth Amendment, which makes the residual powers of the state governments even clearer.

Many claim that the right to an abortion potentially falls within the purview of the Ninth Amendment, which reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  But an essential concept in this country, and the reason we are a nation of laws, is that no person is entitled to exercise their rights when they infringe upon the rights of another.  It has long been the dominion of the states – and not the federal government – to enact laws which define self-defense, justifiable homicide, manslaughter, rape, and murder.

Our Bill of Rights were cautiously drafted and adopted for a reason.  And that reason was the apprehension of the States for a federal government by the very nature of man and power would tend to try to concentrate more power in itself and assume powers away from them.  As Machiavelli wrote: “Whoever wishes to foresee the future must consult the past; for human events ever resemble those of preceding times. This arises from the fact that they are produced by men who ever have been, and ever shall be, animated by the same passions, and thus they necessarily have the same results.”  Alexander Hamilton, a leading Federalist argued that a Bill of Rights was not necessary and in Federalist No. 84, he posed: Why do we need a Bill of Rights to “declare that things shall not be done which there is no power to do?  Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

He went into further detail: “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was the MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”  [Federalist No. 84]

The Federalists were concerned that any constitutional enumeration of liberties might imply that other rights, not enumerated by the Constitution, would be surrendered to the government.  Nationalist (turned Federalist) James Madison argued that any attempt to enumerate fundamental liberties would be incomplete and might imperil other freedoms not listed. In 1789, he introduced 19 draft amendments (to become the Bill of Rights) to the House of Representatives and for one in particular, he offered this comment: “It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution: “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”  This draft amendment submitted by Madison would be the precursor of the Ninth Amendment.  It was specifically proffered to quiet fears that a bill of specifically enumerated rights would be interpreted as a denial that others were protected.

A similar sentiment was expressed in the anti-Federalist essay, Federal Farmer No. 16 (widely acknowledged was written by Founder Richard Henry Lee, of Virginia): “The supreme power is undoubtedly in the People, and it is a principle well established in my mind, that they reserve all powers not expressly delegated by them to those who govern; this is as true in forming a state as in forming a federal government. There is no possible distinction but this founded merely in the different modes of proceeding which take place in some cases. In forming a state constitution, under which to manage not only the great but the little concerns of a community: the powers to be possessed by the government are often too numerous to be enumerated; the people to adopt the shortest way often give general powers, indeed all powers, to the government, in some general words, and then, by a particular enumeration, take back, or rather say they however reserve certain rights as sacred, and which no laws shall be made to violate….  When we particularly enumerate the powers given, we ought either carefully to enumerate the rights reserved, or be totally silent about them; we must either particularly enumerate both, or else suppose the particular enumeration of the powers given adequately draws the line between them and the rights reserved, particularly to enumerate the former and not the latter, I think most advisable: however, as men appear generally to have their doubts about these silent reservations, we might advantageously enumerate the powers given.”

In his address to the House to introduce the final draft of the Bill of Rights, Madison said: “It has been said, by way of objection to a bill of rights….that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.”

Many believe that abortion is not an area that is reserved to the federal government to regulate. While a State has the inherent police powers to regulate for the health, safety, welfare, and morality of its people, the federal government has no such police powers.  The States have this power to regulate behavior and enforce order within their borders because of the reservation of powers under the Tenth Amendment.  The federal government, on the other hand, is a creation of the States and has limited powers and therefore no police power is assumed by it. The federal government was created by the federal compact formed by the States in drafting and ratifying the US Constitution.  The federal government can only regulate and burden individual rights when: (i) there is a compelling governmental interest; (ii) when the law or policy is narrowly-tailored to achieve that goal or interest; and (iii) the law or policy applies the least restrictive means for achieving that interest.

The balance of power between the States and the federal government, as embraced by the US Constitution, was an issue that concerned the States deeply.  Patrick Henry was so distrustful of the Constitution that he urged Virginia to secede from the Union and not ratify it.  He  believed it was poised for abuse by the federal government, would ultimately result in tyranny, and would undue all that was fought for in the Revolutionary War. He believed the lynchpin of the American system was the recognition and protection of strong, sovereign, independent States which would keep checks on a federal government that was infused with certain limited delegated powers. This was our concept of federalism, or Dual Sovereignty.

Federalism is the constitutional division of powers between the federal and state governments.  It is widely regarded as one of America’s most valuable contributions to political science and the most important ‘check’ in our system of checks and balances on the power of our centralized government.

Again, James Madison, “the father of the Constitution,” explained the separation in terms we can all understand: “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce…. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” [Federalist No. 45]  In a letter that Jefferson wrote, he emphasized that states are not “subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole….  The one is the domestic, the other the foreign branch of the same government.”

In Federalist No. 39, an extremely important essay which discussed the nature of the government, Madison wrote:  “[The nature of the government] in relation to the extent of its powers is federal. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. The most effectual precautions are taken to secure this impartiality, to  prevent an appeal to the sword and a dissolution of the compact.”

Since governments tend to overstep the bounds of their authority, the Founders knew it would be difficult to maintain a balanced federalism. In fact, that was one of the central issues raised by the state ratifying conventions as they met to decide whether to approve the new Constitution. Responding to this concern, in Federalist No. 31, Alexander Hamilton expressed his hope that “the people will always take care to preserve the constitutional equilibrium between the general and the state governments.” As he wrote: “This balance between the national and state governments forms a double security to the people. If one government encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by the certain rivalship which will ever subsist between them.”

He went on to say, in Federalist No. 31: “The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty……  As in republics, strength is always on the side of the People, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over the Union (ie, the federal government)….  The safest course is to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Everything beyond this must be left to the prudence and firmness of the People; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.”

And so, in the end, the States spoke out clearly and strongly in their ratification conventions.  They would not give up sovereignty.  They would not adopt a Constitution without a Bill of Rights.  They didn’t trust that a federal government would be able to police itself and not attempt to abuse and enlarge its powers and tread on the rights reserved to the States and to the people. The federal government was never intended to regulate abortion nor define life.  The statements made by Madison make abundantly clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people and the powers it reserves to the States.

Not only did the Supreme Court err by removing the regulation of abortion by the States, it did something far worse.  It used its lofty judicial powers not for strict interpretation of the US Constitution, but rather to fashion a remedy for a pressing social issue – the increasing rate of unwanted pregnancies by those who can’t properly provide for them.

The Burger Court in Roe decided that the Constitution must evolve, and it must be flexible enough to consider current public opinion when deciding whether a right was sufficiently “fundamental” to deserve constitutional protection.

In an interview with the NY Times Magazine in 2009, Justice Ruth Bader Ginsburg made the following statement: “Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”  So, instead of Roe being about a woman’s right to choose, Justice Ginsburg actually thought it was more about getting rid of unborn babies of an “undesirable” portion of our population, because after that, Medicare funding became available for abortions (which she saw as affecting predominantly one segment of the population). She came to question that perception when the Court decided Harris v. McCrae eight (8) years later in 1980, upholding the Hyde Amendment, which was passed in 1976 by Republicans and which forbids the use of public funding for abortion.  But the Amendment has rarely been used or state funding has taken its place, since the ACLU and other groups have argued that the Amendment targets blacks and other low-income minorities and denies them abortion services (ie, since abortion services are provided/used mainly by low-income minorities, denying them unfairly targets minorities!) [See Emily Bazelon, “The Role of Women on the Court”].  So, social engineering appears to be what the abortion issue was and is all about.

But it is also an issue strongly associated with Women’s Rights.

In 2005, Ginsburg, a lifelong proponent of Women’s Rights, addressed NY University’s law school and said that if she were on the Court at the time, she would have secured the right of a woman to have an abortion even more firmly through the Equal Protection Clause.  She said she would have argued that women cannot participate in society equally with men without the ability to control their reproductive lives.  Perhaps Ginsburg had a mind melt with Justice Sandra Day O’Connor.  In Casey v. Planned Parenthood (1992), Justice O’Connor wrote: “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.”  That case went on to remove any obstacles in the way of a woman getting an abortion, such as consent by her husband.

This case is a perfect example of judicial activism.  This is what judicial activism sounds like and smells like.

We all know that Planned Parenthood is prominent in providing abortion services. It receives about $1 million each day in taxpayer funds.  And we know that our pro-abortion President and Democrat leaders refused to cut funding to Planned Parenthood last year. When House Speaker John Boehner asked President Obama how much he was willing to cut from the organization, he said “None, zip, zero, nada.”  Vice President Joe Biden even told Boehner the Obama administration was prepared to take the battle to voters and allow a shutdown of the federal government over Planned Parenthood funding.  This year, the Susan G. Komen Foundation, a breast cancer charity, made a decision to cut funding to Planned Parenthood. A few days later, however, it reversed that decision, after intense pressure from pro-abortion groups. As one commentator put it: “We have witnessed an absolute shakedown of an organization that simply wants to save the lives of women through cancer research.”

But what most people don’t know is that Planned Parenthood was founded by Margaret Sanger in 1916 for the purpose of “stopping the multiplication of the unfit.”  Eugenics.  She boasted that the services provided would be “the most important and greatest step towards race betterment.” But it even more sinister than that.  Sanger united with eugenics financier and businessman, Clarence Gamble, to find several personable black ministers who could help them promote and sell their services as ‘community health and welfare services.’  As Michelle Malkin described in her recent article on the Planned Parenthood founder: “Outright murder wouldn’t sell. But wrapping it under the egalitarian cloak of “women’s health” — and adorning it with the moral authority of black churches — would.  Sanger and Gamble called their deadly campaign ‘The Negro Project.’ ”

The social problems caused by uncontrolled pregnancy was one that the Supreme Court no doubt entertained in Roe v. Wade.  In fact, it was later learned that the plaintiff, Norma McCorvey, really never intended to push her case any further once her pregnancy progressed and she gave birth. She was pressured by pro-abortion groups to appeal her case to the Supreme Court.  If the Court could somehow find that a woman has an inherent right to terminate her pregnancy, then populations could more easily be controlled.  Women wouldn’t be “saddled” with babies they didn’t want or never planned for. Cities wouldn’t be overly burdened with children that its institutions would have to help raise and care for.  Society would be spared exceeding numbers of “useless idiots.”

John Holdren, President Obama’s science czar, is an outspoken proponent of forced abortions and mass sterilizations. For those old enough to remember or those who read their history, only a few years into his presidency of the Third Reich, Hitler instituted a similar policy of forced sterilization.  Any citizen who was deemed “unfit” (insane, infirm, disabled, malformed) or didn’t possess characteristics suitable enough for the “master race” were either institutionalized and sterilized or received a letter informing them that they had to report and be sterilized. Holdren is a self-professed protege of eugenicist Harrison Brown, whom he credits with inspiring him to become a scientist. Brown envisioned a government regime in which the “number of abortions and artificial inseminations permitted in a given year would be determined completely by the difference between the number of deaths and the number of births in the year previous.” He urged readers to “reconcile ourselves to the fact that artificial means must be applied to limit birth rates.” He likened the global population to a “pulsating mass of maggots.”  [Michelle Malkin, “To Stop the Multiplication of the Unfit’]

To some, the abortion ruling in Roe is the most significant decision in modern history. To those who learned about such horrors as what happened under Dr. Kermit Gosnell in Philadelphia, where hundreds of late-term, healthy, living, breathing viable babies were  aborted live and then systematically killed (including with scissors), they ask themselves “What have we done?” And to others, the fight is not over to give the unborn the rights they deserve. They continue to respect the sanctity of life.  Social problems must be addressed by the legislature and not by the Courts, because in doing so, legal analysis will often be skewed to the result that solves the problem. And the funny thing about jurisprudence is that courts hardly ever re-invent the wheel. They just continue to re-cycle and re-cite prior decisions.

The growing opposition to abortion-on-demand has led to a number of proposals, including some which are my own, which I’ve attempted to summarize below:

1).  Amend the US Constitution (much in the same way that the 14th Amendment did to over-turn the Dred Scott decision).  Senator Rand Paul suggests a Human Life Amendment to the US Constitution.  His father has already introduced such a constitutional amendment.

2).  Congress should define life.  The “Life at Conception Act,” which was introduced in January 2011 by Rep. Roger Wicker (R-Miss) and which was co -sponsored by Senator Rand Paul, would define all fetuses to be persons with a right to life guaranteed by the 14th Amendment.  It would effectively negate Roe v. Wade.  Such a law would permit states to declare abortion to be murder and to outlaw new fetal stem cell research and some contraception and fertility treatments.  In 2005 and 2007, Rep. Ron Paul introduced the “Sanctity of Life Act,” which would define human life as beginning from conception, removing abortion from federal jurisdiction.

But life doesn’t necessarily have to be defined as beginning at conception.  To many, a fertilized egg is hardly a person. To recognize that leaves a narrow window of opportunity available for the morning after pill or something similar. To emphatically state that a fertilized egg is a person ultimately gives the government the right to place the woman’s body under the control of the government.  Reasonable minds can come up with a solution that doesn’t involve the highest Court getting in the business of legislating abortion from the bench.  This approach is infinitely more compatible with the 14th Amendment and with the US Constitution in general.

A constitutional amendment on the definition of life would provide better protection than an act of Congress because the amendment would be supreme law.

3).  State nullification of the Roe v. Wade decision.  States can pass a nullification bill which, in effect, says that the Roe decision exceeds the authority of the Supreme Court to strictly interpret the US Constitution and is therefore null and void and not to be enforced in the State.  The bill would have to state something like this:

“The government formed by the Constitution of the united States was not the exclusive or final judge of the extent of powers delegated to itself.  Likewise, the authority of the Supreme Court extends only to the strict interpretation of the Constitution and not to any arbitrary decisions designed for social purposes. The States, the parties to the federal compact (which brought the government into existence for limited responsibilities), have the right under that compact to judge for themselves the extent of powers so delegated and the interpretation of the Constitution that they themselves created and ratified. We, the People of ______ (state), will not submit to the application of force or judicial decision to undermine rights and powers reserved in the Ninth and Tenth amendments and to reduce this State to obedience to the federal government.

The State of ______, having the right, and being duty-bound, to interpose to address any usurpation of power and rights delegated in the US Constitution and for the protection of the liberties of its citizens, declare that the Supreme Court’s decision in Roe v. Wade invades upon the State’s powers and is therefore null and void. The People of this State will henceforth hold themselves absolved from all further obligation to be bound by that decision.

No state or federal court shall adjudicate a case that relies on the Roe v. Wade decision.

No federal agency or agent shall attempt to interfere with the force of this bill. They will have no authority to do so within the borders of this State.”

4).  Leave it to the States to define life as they wish.  Let states determine the point of fetal viability. Congress would have to legislatively limit the jurisdiction on the federal courts such that they would be prohibited from hearing any case or relying on any judicial precedent when it comes to the matter of how life is defined.

5).  Leave the issue of abortion to the States.  Pressure Congress to pass HR 300, sponsored by Rep. Ron Paul, which reads: “Prohibits the Supreme Court and each federal court from adjudicating any claim or relying on judicial decisions involving: (1) state or local laws, regulations, or policies concerning the free exercise or establishment of religion; (2) the right of privacy, including issues of sexual practices, orientation, or reproduction; or (3) the right to marry without regard to sex or sexual orientation where based upon equal protection of the laws.”

HR 300 would negate the effect of Roe v Wade by removing the ability of federal courts to interfere with state legislation to protect life.  So if North Carolina or Texas or any state passes a law against abortion, no one can challenge that law in federal court. As Ron Paul explains: “This is a practical, direct approach to ending federal court tyranny which threatens our constitutional republic and has caused the deaths of 45 million of the unborn.”

This bill was originally introduced in 2005 as the “We the People Act.”

6).  Define abortion as an act of violence against an unborn. As Ron Paul explained: “I see abortion as a violent act.  All other violent acts are handled by the States – murder, rape, armed robbery..  Take away the jurisdiction of the government by a majority vote of the House.”

7).  Abortion should be allowed in the first few weeks (before a heartbeat) and then after that, there should be consequences, including having the child and putting it up for adoption.  If the church is pushing for the right to life, then one solution is to have the church be in charge of adopting and raising the children. That might sound as if I’m pushing the burden on the Catholic Church, but wouldn’t that be one way to help push back against the decay that has resulted in allowing women raise children who aren’t equipped to do so or were motivated solely for a government check and a way to raise children with good solid morals? Besides, adoption is always a decision one can live with.  Plus, sometime down the road, the woman might have a change of heart and try to be part of that child’s life in some way.

8).  Schools should push abstinence.  Schools should promote morality and that means to bring religion back into the public schools. The fact is that humans, like almost all other species, must reproduce to propagate the species.  Sex is how we, biologically, reproduce.  Since we have become such an amoral, sex-driven, gratification-based culture, women have forgotten the duty, and burden, they bear by being the partner that develops and brings forth life.  Young women need to be reminded of the significance of sex for the role it plays in biology and in evolution and schools and other authority should be highly critical of decisions to engage in a sexual relationships.   Only with a strong background in biology and religion (and an overhaul of the welfare program which rewards teen pregnancy and the creates the mentality where mothers encourage their daughters to get pregnancy for security) teach dependency as a way of life) can we expect to fight the abortion problem.  Because religious reverence and reflection has been removed from anywhere a child may go, except Church and perhaps home, momentary physical pleasure is the new social norm.

9).  If it is a social problem that the Court intended to use the decision to address, why not simply address that social problem legislatively.  It may not be as “politically correct,” as legislators would like, but it’s far better addressed by statute, which can be better responsive to changing social conditions, than by twisting constitutional law.

As explained earlier, the abortion issue isn’t about the sanctity of life as much as it is about the impact on society of having so many unwanted babies born into a society with limited financial resources (half of Americans paying income taxes) and with such severe social decay.  Children who are unwanted don’t stand a chance of growing up to be the kind of upstanding, intelligent, respectful, well-adjusted adults to contribute meaningfully in our country.  The abortion problem is a problem of morality and a turn from religious instruction, both of which our government is completely complicit in.  Thanks to government policies and the legal fiction known as “Wall of Separation,” American culture has adopted the idea that momentary pleasure is better than lasting pleasure and physical pleasure is better than spiritual pleasure. Our culture has clearly rejected the historic notion that sexuality is meant to be enjoyed within the confines of a stable, committed marital relationship. Sexual immorality and promiscuity is glorified. Our children are inundated with it from TV shows, movies, and music videos. The government claims it is not its role to get involved with morality, but every decision by government reflects someone’s moral judgment.  What they mean to say is that they just don’t want any decisions made that remotely have anything to do with religion.  And we all know that religion provides the principles, restraint, and posturing that define morality.  I say to government:  “If you don’t believe you should promote morality, then get out of the public education business!”  Leave it to the States who are legitimately charged with regulating for the general health, safety, morality, and welfare of its citizens.

The case of Roe v. Wade overruled the 100-year-old Texas abortion law which banned abortion except when necessary to save the life of the mother.  Even further, it engrained something terrible and evil in our collective national conscience…  abortion-on-demand..  the mindset that abortion is completely acceptable in almost all cases, in all stages of pregnancy, and for almost all reasons. It engrained something unconscionable in the minds of women who put convenience, career, and equal competition in society with men above all else — that a baby conceived by the Holy Spirit to be loved, wanted, and cared for, is expendable.

The silent screams have increased to levels we can’t even imagine…  They are the silent screams that no one hears except God.


Roe v. Wade, 410 U.S. 113 (1973).  Referenced at:

Tim Radford, “What is Life?,” The Guardian/The Observer, April 26, 2008.  Referenced at:

Alexander Hamilton, Federalist No. 84.  Referenced at:    [Hamilton addresses  general objections to the Constitution]

James Madison, Speech Introducing the Bill of Rights (to House of Representatives), June 8, 1789.

Federal Farmer No. 16.  [Making the case for a Bill of Rights].  Referenced at:

Griswold v. Connecticut, 381 U.S. 479 (1965).  Referenced at:

Griswold v. Connecticut, 381 U.S. 479 (1965).  Referenced at:

Snyder v. Massachusetts, 291 U.S. 97 (1934).  Referenced at:

Michelle Malkin, “To Stop the Multiplication of the Unfit,” Feb. 10, 2012.  Referenced at:

Carolyn Gargaro, “Roe V Wade – The Unconstitutional Decision,” Rightgrrl, Feb. 3, 2000.  Referenced at:

Alexander Hamilton, Federalist No. 31.  Referenced at:   [The general power of taxation, cont’d from No. 30]

Alexander Hamilton, Federalist No. 28.  Referenced at:    [Limitations on legislative power with respect to Providing for the Common Defense]

James Madison, Federalist No. 39.  Referenced at:    [The absolute need to have the government conform to Republican principles; Addresses the question of whether the government is ‘federal’ or ‘national’]

James Madison, Federalist No. 51.  Referenced at:    [The importance of proper checks and balances]

Andrew M. Allison, “Federalism and the 10th Amendment,” The National Center for Constitutional Studies, March 1995.  Referenced at:

Letter to Major John Cartwright, 5 June 1824; in The Writings of Thomas Jefferson , ed. Albert Ellery Bergh, 20 vols. (Washington: Thomas Jefferson Memorial Association, 1907), Vol.16.

Alexis de Tocqueville, Democracy in America, 1831.

Steven Ertelt, “Obama Refused Boehner’s Demand to Cut Planned Parenthood Spending”, Life News, April 11, 2011.  Referenced at:

Fred Lucas, “Obama Defends Roe v. Wade As Way for ‘Our Daughters’ to Have Same Chance As Sons to ‘Fulfill Their Dreams’,” January 23, 2012.  Referenced at:

Ron Paul, Liberty Defined: 50 Essential Issues That Define Our Freedom, Grand Central Publishing, 2011.

Ron Paul, National Right to Life Convention, Kansas City, Missouri, June 15, 2007

Emily Bazelon, “The Role of Women on the Court,” NY Times, July 9, 2009.

About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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1 Response to The Social Reformer’s Definition of Life (Roe v. Wade, revisited)

  1. amessen says:

    Excellent analysis. For my Biology class, during our study of human reproduction last week, we looked at some of the same issues. I’m pasting a link to this for my class’s discussion. I’m glad to have colleagues of like mind.

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