Abortion and the U.S. Constitution

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In the United States, tensions frequently arise between legality and constitutionality. A prominent example is the Supreme Court’s 2022 reversal of its landmark 1973 decision in Roe v. Wade. In that case, the legality of abortion was not derived from congressional legislation or a constitutional amendment, but from a judicial ruling. In that case, the Court argued that they had a responsibility to attempt to balance a woman’s right to privacy over her own body with the state’s interest in protecting life, concluding that, up to a certain stage of pregnancy, abortion must be recognized as a constitutional right. However, this decision appeared to conflict with the previously acknowledged unalienable right to life of the child.

In the 1973 Roe case, a constitutional approach the Supreme Court should have taken would involve placing greater emphasis on an individual’s unalienable, or inherent, right—in this instance, the right to life. Under such reasoning, the justices would have been compelled to recognize, by the Court's own admission, that neither the Court nor humanity as a whole could definitively determine the exact moment when a child’s life begins, at least from a secular view. This perspective would necessitate giving more substantive weight to protecting life in the absence of absolute certainty regarding its inception.

It is the duty of the government, including the judiciary, to safeguard the rights of U.S. citizens, particularly the fundamental right to life. When the precise moment at which life begins cannot be definitively determined, cautious jurisprudence would require that the Court’s most judicious course of action would be to presume life begins at conception and to render decisions in favor of protecting that life.

There has been ongoing debate regarding the primacy of unalienable rights versus constitutional rights when these rights appear to be in conflict. The Founding Fathers seemed to acknowledge that unalienable rights hold the highest status, as they exist independently of the U.S. Constitution or statutory law. It is a massive overstep to argue that the Constitution overrides natural rights, given that the framers’ principal objective was to strengthen, not diminish, individual liberties. As James Madison articulated in Federalist No. 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people.[1]

The primacy of unalienable rights is upheld through the provisions of both the Fifth Amendment and the Fourteenth Amendment. The Fifth Amendment establishes that no individual shall be deprived of certain enumerated rights, including the right to life, without due process of law. The Fourteenth Amendment extends this protection by ensuring that the same restriction applies to state governments. The relevant portion of the Fifth Amendment states:

…nor shall any person…be deprived of life, liberty, or property, without due process of law.

The other "constitutional" decision the court could have reached would have been to determine that abortion was not a federal issue, leaving decisions on abortion to the individual states. This is the ruling the Court reached recently when the Roe decision was overturned. While this decision might be more constitutionally acceptable, it still allows states the opportunity to infringe on the unalienable right to life recognized in both the Declaration of Independence and the U.S. Constitution. Consequently, instead of giving the unalienable/constitutional right to life the weight it deserved, the Court, as it often does, sought a compromise that set aside constitutional principles.

After the Court's 1973 decision in Roe v. Wade, abortion was shrewdly renamed "reproductive care," in a feeble attempt to camouflage the nature of the practice. Still, the name does not change the facts on abortion. According to data from the Guttmacher Institute, over the past 53 years since the Court legalized abortion, roughly 63 million babies have been aborted in the U.S. This translates into nearly 1.2 million lives each year. 63 million is an absolutely staggering number. It would be equivalent to wiping out roughly 20% of the country's current population.

Conclusion

Based on the premise that unalienable rights hold primacy, the right to life should have received primary consideration in Roe v. Wade. This unalienable right to life would then have outweighed a woman’s right to privacy under the Fourteenth Amendment, which was wrongly employed to elevate the right to an abortion to constitutional status. Such an approach would have prevented the Court from creating and declaring a constitutional right through judicial decree. Consequently, the ruling extended beyond the scope of the Supreme Court’s limited authority, as it bypassed the constitutionally sanctioned mechanisms of legislative enactment or constitutional amendment.

Perhaps one day the courts will begin to give the U.S. Constitution due respect when faced with cases of this magnitude. Unfortunately, justices on the left side of the political aisle have a history of serving a political agenda (Constitution be damned) while many on the right often seek to appease as much of the populace as possible with their rulings. As long as this is the case, we will continue down this path of constitutional mediocracy and faulty rulings as in Roe v. Wade.

[1] Madison, James, Federalist No. 51.

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