Recent opinion pieces regarding state abortion laws have stated that abortion is a fundamental right guaranteed by the US constitution. However, this is not a legal reality.
The original states were sovereign and could make any law they wanted within the limits of their own constitutions. They created the federal government in 1789 by ceding to it certain enumerated powers – and no more. Two years later they added a Bill of Rights to further specify things the federal government couldn’t do, but they themselves could still do these things if they wanted. It wasn’t until 1868 that the Constitution was amended to apply these federal restrictions to the states, thus achieving some degree of uniformity. But, again, states had the right to regulate anything not specified.
That is why to this day there can be vast differences between the laws in one state versus another. Each state is allowed within these limits to organize their own society as the people of that state determine based on their own ideas, desires, and feelings. There is no requirement that they all be the same.
In 1972 the U.S. Supreme Court upset the apple cart in the case of Roe v. Wade when it declared that there was a Constitutional “Right to Privacy” that allowed a woman’s medical choices to be a private decision between her and her doctor. The court very much recognized and discussed that there were two lives involved – that of the mother and that of the baby, and fully recognized the right of Texas to protect the life of the child after the point of viability, but struck down the restrictions prior to that point due to the mother’s privacy right.
The decision was immediately controversial because the Constitution mentions no such right. Congress and the states alone have the right to create laws, declare rights, or amend the Constitution. And if the Supreme Court could declare a right by fiat, then any future court could undo it by fiat as well because the Constitution itself is silent on the issue. And since no amendment has been passed to clarify the issue, the states are now using the same technique in order to change the law — namely take a case to court.
To say that this is somehow draconian, backward, or imposing religion are points of view based on values. Many other people in America sincerely believe that the killing of children in the womb, or even on the delivery table, is barbaric, shocking, and a crime against humanity. It is the very picture of brutality that they do not ever want to see society become. And even if New York should choose this route, people in Missouri, Ohio, Alabama, and other places feel otherwise and do not want it there.
So viewpoints and feelings on this issue can vary greatly. But strictly from a legal standpoint, there is no guaranteed right to abort a child. It depends entirely on a decision of the Supreme Court.
Chuck Jonas is a resident of Kailua-Kona.
