We’ve all heard it countless times: “The Roe v. Wade decision established a Constitutional right to abortion.” As a society, we’ve persisted in this belief for more than forty years. Yet for that same number of years, intelligent and courageous Americans have continually stepped forward to assert that that decision, as well as any other decision legalizing abortion, is unconstitutional. If you’ve ever wondered about this persistent opposition to what many others consider to be established law, take a closer look at the basis for the opposing argument.
We’ve seen the desperation with which those who allege the existence of a constitutional right to abortion had to cast about in search of justification. After all, our Founding Fathers, authors of our constitution, never at any point wrote the “right” to abortion into our governing document. Never intended doing so. Never even, as nearly as we can discern, considered doing so. Yet nearly two centuries later, several groups of individuals not one of whom was entitled to legislate would insist that such a right be forced into “constitutional” legality. Their insistence would be based on an assortment of considerations not one of which was the truth. No doubt about it—it was quite the conjuring trick to insert the “right” to abortion into the U.S. Constitution.
The conjury began with the legal case (Roe v. Wade)- that determined the “Abortion is Constitutional” Supreme Court ruling. This much about that case is true: there was a woman who was pregnant and whose written agreement to act as plaintiff was given. Beyond that, we enter into the realm of untruth—indeed, of untruth piled upon untruth.
First, the plaintiff’s name was not “Jane Roe.” When she agreed to serve as plaintiff, she was impoverished, addicted, and minimally educated—and had, according to her later testimony, no full realization that the case was about abortion. Nor had she had been raped, as she had originally claimed upon the advice of her attorneys. Ultimately, she didn’t have an abortion, choosing, instead, the life-affirming alternative of placing her child for adoption. Except for the fact of her being pregnant, therefore, nothing about the plaintiff’s plight was the truth. Her ostensible case was the fabrication of abortion proponents who saw in her a vulnerable, easily manipulated figurehead. To help them realize their goal of changing abortion laws, the image they fashioned from her was essential.
Equally essential was the falsification of the statistics on maternal deaths or injuries from illegal abortions. Prominent abortionist Dr. Bernard Nathanson, along with like-minded colleagues in the medical field, was involved in the Roe v. Wade case—and later admitted that they all conspired to falsify statistics on illegal abortions and maternal deaths in the decades preceding Roe. After his spectacular conversion to the pro-life cause, the doctor explained publicly how he and other key individuals used the false information to convince the Court that legalizing abortion would be safer than allowing it to continue illegally.
Another bit of conjury had to do with the Constitution itself. Nowhere within it is either abortion or any “right” to it mentioned. There is, however, a mention of life—specifically, a clear affirmation of the right to life—in the Fifth and in the Fourteenth Amendment to that document. The Fifth Amendment declares that “No person shall be … deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment made this portion of the Fifth Amendment applicable also to the states, adding, “… 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 laws.” Thus, even when an existing law permits imposition of the death penalty, whether on a criminal or on an innocent unborn child, the constitution states–and due process of law demands–that there must first be a trial and verdict in each case before such a penalty may be implemented. Since conceived-but-as-yet-unborn persons are demonstrably in possession of their lives, our Constitution explicitly commits us to protecting and preserving those lives from being cut short arbitrarily. The only way around that commitment would be to make legal an exception for a certain type (unborn) of life. By creating legislation from the judicial bench, that is exactly what the Supreme Court did.
Just how did our highest and most respected court manage this tortuous slither around the Constitution’s commitment to protecting life? It permitted our governing document’s straightforward statement of our obligations to human life to be outweighed in importance by something allegedly found in the “penumbra” of the Fourth Amendment’s guaranteed right to privacy. In other words, the court pronounced it legal deliberately to kill your unborn child because that killing is a private matter within your family—and for legislation to interfere with it would be somehow equivalent to government authorities breaking into your house to search without a warrant, tap your phone, seize your papers, etc.
Take as long as you need to think about that.
In his dissenting opinion, here’s what the late Justice Byron (“Whizzer”) White thought about the matter: “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…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.”
Neither then nor later was Justice White’s the only dissenting voice to be raised against the constitutionality of Roe v. Wade. A sampling
“It is, nevertheless, a very bad decision…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.” – John Hart Ely, American law professor known for his studies of constitutional law; esteemed legal scholar
“The Constitution contains no right to abortion.” – Justice Antonin Scalia
“The right to life is in the Fifth Amendment and in the Fourteenth Amendment. Nowhere in the Constitution is there a right to abortion. So the judges usurped their role as protectors of the Constitution when they created a right that was never intended to be in the Constitution.” – Allan Parker, lawyer, law professor, president of The Justice Foundation
“There’s nothing in the Constitution that says the Supreme Court has the right to make laws…. That’s what you’ve got the legislature for.
The Supreme Court itself, in 1992, in Planned Parenthood v. Casey, clearly said that if it were a question of first impression—if it hadn’t been ruled on before—they might very well not find a right to abortion…since it was found in ’73 in Roe v. Wade, we have to respect it. But this is very bad legal logic…in no other area of the law do we protect a precedent simply because it’s there. Because a decision that’s wrong is an unconstitutional decision. So you’d have to, if you respect the Constitution… overturn it.
Second thing they said was because the Supreme Court has resolved this difficult, divisive issue, Americans should accept that resolution… to do otherwise would undermine the credibility of the court. If it was a bad decision…why should the American people accept it? They’re saying …because the Supreme Court gave it”…it undermines the credibility of the court to reaffirm Roe. If they’re not going to overturn decisions that are contrary to the Constitution and they know it…only doing it because it’s been there for a while, that puts them in violation of their oath.” – Bill Saunders, lawyer, law professor, human rights counsel for the Family Research Council
“More than a decade ago, a Supreme Court decision literally wiped off the books of fifty states statutes protecting the rights of unborn children. Abortion on demand now takes the lives of up to one and a half million unborn children a year. Human life legislation ending this tragedy will one day pass the Congress, and you and I must never rest until it does. Unless and until it can be proven that the unborn child is not a living entity, then its right to life, liberty, and the pursuit of happiness must be protected.” – President Ronald Reagan
There’s one last thing—something so simple, so obvious, that we marvel that it can have been overlooked. If the Constitution is our governing document, the Declaration of Independence is our founding document. And what does this foundation for the later and more elaborate assertion of our rights and purposes have to say about those rights? Just two sentences into the Declaration, we find the following statement: “…that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness….”
Elementary logic tells us why life is mentioned first. Where life is lacking, neither liberty nor the pursuit of happiness is even possible, much less relevant. “Unalienable” indicates that these rights, especially the right to life, naturally accrue to the condition of being human. In other words, once it is established that a life form, whether born or unborn, is of the human species, these unalienable rights belong to it. No authority is justified taking them away. To attempt to legislate otherwise is to place our governing document and principles in direct contradiction to our founding document and principles. By passing pro-abortion legislation, that is precisely what we have done In light of this, we make bold to borrow from yet another of our country’s seminal documents. The question that remains for us to ask ourselves is this: “…whether…any nation so conceived, and so dedicated, can long endure.” If our answer is “Not much longer,” then the next, the crucial, question becomes evident: what are we prepared to do about it?