Saturday, May 7, 2022

Musings on Abortion as a Constitutional Right or a Political Issue

By Rudy Barnes, Jr., May 7, 2022

A woman should have the right to an abortion, albeit with restrictions   If the Supreme Court overrules Roe v. Wade (1973), as expected, any right to abortion will depend on Congress or the states providing it--and that’s how it should be.  The Supreme Court doesn’t make laws; its jurisdiction is limited to interpreting laws in the context of the U.S. Constitution.

The jurisdiction of the Supreme Court is limited by the Constitutional separation of powers.  Article I states that “All legislative Powers herein granted  shall be vested in Congress.  Article III provides that “The judicial power of the U.S. shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” 

The decision of Roe v. Wade was based on the constitutional right of a woman to choose life or death for a fetus she carries.  It’s based on the 4th Amendment rights to privacy that protect “the right of the people to be secure in their persons…against unreasonable searches  and seizures…”; but it says nothing about protecting the rights of a fetus in the womb.  

There’s a precedent for reversing Supreme Court precedents.  In Plessy v. Ferguson (1896) the Supreme Court found that “separate but equal” laws did not violate the Constitution; 60 years later in Brown v. Board of Education (1954) the Supreme Court ruled that “separate but equal” laws were unconstitutional in public schools, effectively overruling the Plessy decision.

Religion is a major factor in the abortion debate, as it was with slavery; but abortion is not mentioned in the Bible or in the Constitution. We can’t expect the Supreme Court to resolve the issue, and we don’t need to fight another civil war over abortion. We need only require that Congress functions as it should to resolve this contentious issue.

Abortion, like euthanasia, involves issues of life and death that are defined by law.   Abortion has its focus on when life begins, while euthanasia (the right to die) has its focus on how and when life ends.  A fetus has no voice in what happens to it, and with euthanasia the right to end one’s life has traditionally been denied based on the sanctity of life.

The 9th Amendment provides that rights provided in the Constitution do not “deny or disparage others retained by the people.”  The 10th Amendment provides that “The powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the  States respectively, or to the people.”  They reflect a federal system of state and federal rights.

On the issue of abortion, the Supreme Court is not the problem.  The problem is that America’s polarized partisan politics have failed to find a compromise on abortion rights.  If the two parties can’t resolve this contentious issue in Congress or in the states, American democracy will fail, and both parties will only have themselves to blame.


Asserting that The Supreme Court might never recover from overturning Roe v. Wade, the Washington Post Editorial Board revealed a misunderstanding of the separation of powers in the Constitution, the  role of theSupreme Court, and the distinction between fundamental Constitutional rights that are beyond the reach of Congress, and rights that can be created or changed by Congress.  

The opinion cites Justice Alito’s “dreadful reasoning and extreme potential consequences…that declare Roe ‘egregiously wrong,’ and  obliterate its guarantees of reproductive choice and empower lawmakers to abridge at will this long-held right.”  The editorial goes on to say that ”The court’s legitimacy rests on the notion that it follows the law, not the personal or ideological preferences of the justices who happen to serve on it at any given time. Americans rely on the court to exercise care and restraint against making sharp turns that might suddenly declare their everyday choices and activities unprotected or illegal.”  

The editorial attributes Alito’s draft decision to blatant partisan politics: “What brought the court to its current precipice was not a fundamental shift in American values regarding abortion. It was the shameless legislative maneuvering of Senate GOP leader Mitch McConnell (Ky.).”

The editorial suggests that the Supreme Court should be guided by public opinion rather than by the Constitution. “A Post poll found just last week that Americans support upholding Roe by a 2-to-1 margin. For most people, Roe is a workable standard on a fraught issue.  Absent a clear understanding about when life begins, and with the moral implications surrounding that question far from settled, the Constitution’s guarantees of personal autonomy demand that pregnant people be able to make the difficult decision about whether to end their pregnancy according to the dictates of their own conscience.”

The opinion engages in blatant fear-mongering: “It is Justice Alito’s proposed decision that would further divide the country, starting in nearly every statehouse. He would inaugurate a terrifying new era in which Americans would lose faith in the court, distrust its members and suspect that what is the law today will not be tomorrow. They would justifiably fear that rights will be swept away because a heedless conservative fringe now controls the judiciary.”  See


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