Scholars Argue Roe v. Wade is Actually Un-Constitutional

On Jan. 22, 1973, the U.S. Supreme Court (in Roe v. Wade and Doe v. Bolton) legalized the procedure of abortion for any reason before “fetal viability,” which is loosely defined.

The Court stipulated that abortion must be permitted for “health reasons” of the woman—up until birth. Yet the Court’s broad definition of “health reasons” essentially allowed for any reason and legalized abortion on demand.

The Court’s ruling actually violated the Constitution on several grounds. The majority opinion expressed by Justice Harry Blackmun reasoned that the Due Process Clause of the Fourteenth Amendment protected a woman’s “liberty,” which included a “right of privacy … broad enough to encompass” her right to have an abortion.

Yet, the Court illegally excluded a particular class of people (the unborn) from the Due Process Clause’s protection. It effectually created “a constitutional right of some human beings to kill other human beings,” attests University of St. Thomas law professor Michael Stokes Paulsen.

Likewise, University of Pennsylvania law professor Kermit Roosevelt (who supports legalized abortion) points out: “As a constitutional argument Roe is barely coherent. The Court pulled its fundamental right to choose more or less from the constitutional ether.”

In his dissenting opinion, Justice William Rehnquist wrote, “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.”

The Court’s ruling violated the Constitution’s most fundamental principle: human equality and the protection of one’s right to live. The Constitution requires that every human life be protected, regardless of age, size, stage of development, or dependency on another human being.

The Court also ignored legal jurisprudence and historical context regarding the Fourteenth Amendment. State laws prohibited abortion prior to the Fourteenth Amendment’s adoption in 1868—contrary to Blackmun’s demonstrably false claims.

Constitutional scholar and Yale law professor John Hart Ely wrote:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

The Court also created another precedent by striking down state laws as illegal, which had existed in all 50 states for roughly 100 years. These state laws were enacted democratically– decided by voters either through ballot initiatives or elected state legislatures. The Court overruled the rightful authority of the people in each of these states—and the other two branches of government did nothing in response.

Against the will of the people, and in defiance of the Constitution, the Court created policy based not on the Constitution.

Yet, the Supreme Court is not the ultimate legal authority in America. The Court does not have the final word on legal matters: American citizens do. The Founders created separation of powers for a reason: Congress can overrule the Supreme Court as well as the President. States can overrule Congress. Congress and state legislatures determine policy as elected branches of government—elected by the people. And the people (in 1973 and 2015) overwhelmingly support significant restrictions on abortion.

In so doing, the Court legalized the leading cause of murder and human death in America. Since 1973, more than 56 million human beings have been “legally” killed.

The Court in Roe, usurped the authority of the people and made murder, illegal according to the Constitution, legal. The Court not only broke the law but legalized others breaking it as well.

August 3, 2015.


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