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Roe vs. Wade Did Not “Legalize” Abortion

Yesterday, this country marked the anniversary of what is perhaps the most controversial and debated Supreme Court decision in this country’s history: Roe vs. Wade. In addition to being one of the most controversial, it is also one of the most misreported and misunderstood rulings in this country.

While I tend to lean more toward the pro-life side of the equation, I am not adamant about it. I am not someone who you will see at a pro-life rally or killing an abortion doctor. If you are someone who believes that a fetus is an “unviable tissue mass” and therefore feels there is nothing morally wrong with abortion, then I will not argue with you. My own personal goal is to make sure that it never applies to my life. I do feel, however, that regardless of which side you are on, Roe vs. Wade is a prime example of a courtroom deciding what a legislature should decide.

There are two common myths about Roe vs. Wade:

Myth #1: If Roe vs. Wade were overturned, abortion would instantly become illegal. This is false. All that would happen is that it would revert to being a legislative decision, either in the federal government, or in state governments. The likely result would be some states where abortion is legal, and others where it is not.

Myth #2: Roe vs. Wade legalized abortion. This is the most misreported aspect of this decision. To “legalize” something or to make something “illegal” requires the participation of the legislative branch. A court cannot make something legal or illegal. Roe vs. Wade declared not that abortion is legal, but that abortion is a constitutional right. This meant that it would be unconstitutional to ban abortion, and as a result, it made abortion “legal” without any resolution from the legislative branch. The Supreme Court can only make decisions based on the interpretation of the Constitution, and thus by making this ruling, it declared that the Constitution granted this right.

So can you be pro-choice and yet believe that Roe vs. Wade was a bad decision? Yes. What you would be saying is that you believe abortion should be legal, but that it is not a constitutional right. It is somewhat surprising, at least to me, that there are no elected representatives that espouse this particular pair of views. The “legality” and “constitutionality” arguments get lumped together very incorrectly.

The Constitution and the Bill of Rights have gotten so mangled in their meaning over the years that people think you can make it say anything you want it to. These days, most people think that “separation of church and state” and “right to privacy” appear within these documents. They do not. “Separation of church and state” was derived from the First Amendment, which merely states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” which only means that government cannot tell you how to practice your religion or what religion you must be. The “right to privacy” was derived from the Fourth Amendment, barring illegal search and seizure, but there are differences in scope between these concepts as well.

The arguments in favor of the Roe vs. Wade decision are generally based on the Fourth and Ninth Amendments, which read as follows:

Amendment [IV.]

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

Amendment [IX.]

The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.

If you put these two amendments in front of the average person and asked them what they had do with abortion, most of them would probably tell you that they would not see anything. (If anything, the Fourth Amendment may indicate that a woman cannot be forced to have an abortion by the government.) But pro-choice advocates managed to take the previously mentioned interpretation of the Fourth Amendment as granting individuals the “right to privacy”, and further bent this to mean that you cannot tell a woman what she can or cannot do with her body.

This argument is specious at best and a criminal butchering of common sense at worst. There are lots of laws out there that say what people (male or female) cannot do with their bodies. Using this argument, public nudity and prostitution would be constitutional rights also, but these are both illegal acts in most places.

It is certainly true that abortion was not a hot-button issue during the days of the Founding Fathers. But the Constitution was designed to outline the workings of government and the basic rights of all people. Those “basic rights” include freedom to speak against your leaders without retribution, the freedom to practice whatever religion you choose, the right to bear arms and many other things. While I certainly have no more knowledge than anyone else about what Ben Franklin and Thomas Jefferson would say if they were here today, I would wager that the “right to have an abortion” would probably not be a basic right upon which you would found a nation.

Again, it must be clarified that what is said above is not an argument for or against the legality or morality of abortion. It is merely an argument against the notion that abortion is a Constitutional issue. If you believe this, then Roe vs. Wade needs to be overturned, and the decision should be made legislatively by elected representatives of the people, instead of by nine people in black robes.

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