Is abortion constitutional? Let’s ask the founders

Supreme_CourtIs abortion constitutional? The Supreme Court concluded in Roe v. Wade (1973) that an expectant mother has a “fundamental right to abortion.” According to Supreme Court logic,  this right to abortion is protected under the penumbral right of privacy supposedly guaranteed by the Bill of Rights.

To see whether the Roe decision is an accurate interpretation of constitutional rights, it is important to understand the intentions of the authors of the Constitution. Did they advocate legal abortion protected by the Constitution?

One of the most authoritative sources for learning law during the founding era was William Blackstone’s Commentaries on the Laws of England. Blackstone, a distinguished English jurist, was so well-liked by the founding fathers that he was the second most frequently cited thinker in the American political writings of the founding era. American law students studied his work so religiously that Thomas Jefferson wrote to a friend that “Blackstone is to us what the Koran is to the Muslims.”

Blackstone affirmed in his Commentaries that an individual’s right to life is an “immediate gift of God.” This right to life is legally binding “as soon as an infant is able to stir in the mother’s womb.” Per Blackstone,

“For if a woman is quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.”

Interestingly, Blackstone also explains that fetuses “in the mother’s womb” are legally considered “to be born.” Thus, the law considered a fetus to be his or her own person, independent of the mother.

From these commentaries, the founding fathers learned that any abortion perpetrated after the stirring of an infant in the mother’s womb was a “heinous misdemeanor.”

American courts upheld this traditional common law approach in characterizing abortion as a misdemeanor. Founding father James Wilson, a signatory of the Declaration of Independence and original U.S. Supreme Court justice, taught his law students that,

“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”

Similarly, St. George Tucker, a Madison judicial appointee and professor of law at the College of William and Mary, explained in his celebrated legal treatise on American law that it is  “a great misprision [misdemeanor]” to “kill a child in its mother’s womb.”

Laws in American states criminalized abortion from the beginning. For example, Virginia law outlawed the practice of using “potion” to “unlawfully destroy the child within her [womb].” These laws were crafted by many of the same individuals who framed the Constitution.

It is therefore inconceivable that the framers intended constitutional protections for abortion as a “fundamental right.” Indeed, the framers believed the opposite. From their perspective, the unborn child has a fundamental right to life, a right that would be infringed by an abortion that ends his or her life.

A “fundamental right to abortion” does not exist in the Constitution or its amendments. It is the height of intellectual dishonesty to argue that the authors of the Constitution and its amendments intended to protect abortion under some vague and unwritten “right to privacy.” That so many courts and judges have for so long upheld a legal doctrine antagonistic to the Constitution reveals the rogue nature of the modern judiciary.


This article was written for the Family Policy Institute of Washington.


 

Just Like Roe, Marriage Isn’t Settled, Despite What Trump Says

58177a15150000d804530d10In his first interview since winning the presidential election, President-elect Donald J. Trump assured the American people that he won’t advocate reversing the Supreme Court’s decision last year requiring states to issue marriage licenses to same-sex couples.

Speaking with CBS News correspondent Leslie Stahl on 60 Minutes, Donald Trump indicated that his administration will abandon efforts to overturn the controversial Obergefell decision. The news media has interpreted Trump’s support for same-sex marriage as a sign that the conservative movement has surrendered on the contentious issue.

“I’ve been a supporter [of the LGBT group],” Trump said in the interview this past Sunday. “[Marriage equality] is already settled. It’s law… These cases [regarding same-sex marriage] have gone to the Supreme Court, they’ve been settled, and I’m fine with that.”

In Obergefell v. Hodges (2015), the Supreme Court interpreted the Fourteenth Amendment as requiring states to issue marriage licenses to same-sex couples.

The Court’s decision to force states to give equal treatment to same-sex marriages “has no basis in the Constitution or this Court’s precedent,” wrote Chief Justice John Roberts in his dissent. “Under the Constitution, judges have power to say what the law is, not what it should be…. Five lawyers have closed the debate [about same-sex marriage] and enacted their own vision of marriage as a matter of constitutional law.”

While President-elect Trump may be willing to accept the unconstitutional edict from the Supreme Court, Republicans and conservative Christians shouldn’t abandon efforts to restore traditional marriage.

Conservatives know that laws encouraging traditional nuclear families – consisting of a father, a mother, and their children – strengthen communities.

Furthermore, numerous sociological studies indicate that children raised within intact traditional families are healthier and happier. These children are also more likely to become successful, well-adjusted adults.

Our laws should reflect this social and biological reality. Just as our laws affirm that adultery and polygamy corrode the natural order and weaken families, so too should our laws reflect the truth that normalizing homosexual relationships isn’t conducive to maintaining a healthy society.

When trying to determine which approach should be used to oppose same-sex marriage, conservatives should be careful to avoid the pitfalls that derailed the movement against no-fault divorce. As states began adopting no-fault divorce laws during the 1970s and 1980s, many on the religious right articulately defended the sanctity of covenantal marriage, warning about the harm to children and communities caused by broken families.

Over time, however, the movement abandoned its role as prophet, conceding the issue of no-fault divorce to those who contended for the legal ability to divorce their spouse for any number of personal reasons. As religious conservatives began backing away from the issue, more states passed no-fault divorce laws, contributing to the near 50% divorce rate among married couples today.

Instead, conservatives concerned about the sanctity of marriage should mimic the tactics of the pro-life movement. Despite the monumental legal loss of the Supreme Court’s decision in Roe v. Wade (1973), people of faith have remained steadfastly opposed to the abortion on demand. Pastors, priests, and layman alike have lovingly explained how the inherent dignity of human life, created in the image of the Creator, disallows the notion that a mother has the right to choose to end her pregnancy. Likewise, researchers have published scientific studies detailing the capability of unborn babies to feel pain.

By mobilizing churches and congregations to advocate pro-life policies despite early legal losses, the pro-life movement has made significant gains over the last couple decades. In the wake of Obergefell, Christians should follow the model of political activism and social persuasion that has been so effectively utilized by the pro-life movement.

So here’s the bottom line, conservatives: Don’t give up on the sanctity of marriage just because the Republican in the White House refuses to get involved in the fight. We must continue agitating for a political order that better reflects natural law and the reality of the human experience, even when it’s not politically expedient. Sociologists, psychologists, other researchers should continue publishing empirical studies detailing how same-sex marriage adversely affects couples, children, and communities.

Marriage isn’t a lost cause. Although it may seem like society – including some prominent Republicans – is accepting the falsehood that same-sex marriage is a normal and healthy family arrangement, we must remain faithful to the truth, recognized for thousands of years, that marriage between one man and one woman forms the basis for resilient communities and healthy families.

Just like Roe v. Wade isn’t settled, same-sex marriage isn’t settled, either.


This article was originally published by the Family Policy Institute of Washington.

Supreme Court Disregards its Own Standard in Abortion Ruling

In a devastating 5-3 loss for pro-life advocates, the Supreme Court just overturned two provisions of Texas’ HB 2 law that placed restrictions on abortion providers. The law was designed to improve the safety of women by requiring abortion providers to meet surgical center health and safety standards and maintain admitting privileges at nearby hospitals.

The Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt struck down both of the law’s provisions, saying they placed an “undue burden” on a woman’s right to have an abortion.

In his dissent, Justice Clarence Thomas wrote that the “decision exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue,’” quoting the late Justice Antonin Scalia.

Texas legislators had been careful to ensure that their law conformed to the ‘undue burden standard’ proposed by the Court in Planned Parenthood v. Casey (1992). According to a summary by Public Discourse, the undue burden standard allows legislators to “regulate pre-viability abortions for the health and safety of the woman, provided the regulation does not create a substantial obstacle to the abortion right.”

In its decision in Whole Woman’s Health v. Hellerstedt, the Supreme Court has now disregarded its own undue burden standard. According to Justice Thomas, the scrutiny applied by the majority to the Texas law “bears little resemblance to the undue-burden test the Court articulated” in Casey.

Since Texas law requires physicians performing surgical births like caesarean sections to maintain admitting privileges at local hospitals, applying this standard to physicians that perform abortions should not be controversial. Even the prochoice National Abortion Federation (NAF) recommends that “[i]n the case of emergency, the doctor [performing the abortion] should be able to admit patients to a nearby hospital (no more than 20 minutes away).” HB2 mandated doctors to have hospital admitting privileges at hospitals no more than 30 minutes away – a standard even lower than the one advocated by NAF.

By overturning the health and operating standards required by HB2, the Supreme Court has not only overruled the will of the Texas legislature, but it has also made abortion less safe for women.

An estimated 3,180 women were hospitalized for complications resulting from an abortion in 2011. Requiring abortion clinics to comply with the same medical standards for other forms of surgeries ensures that women will receive necessary medical care when complications arise.

“Our main concern is the safety of Texas women. We will continue to stand for women to keep them safe so they are not maimed or die in abortion clinics,” Jonathan Saenz, President of Texas Values, said in a statement.

The plaintiff in the case, abortion provider Whole Woman’s Health, had repeatedly been cited for safety and health violations in its clinics. In its yearly inspections of Whole Woman’s Health clinics, the Texas Department of State Health Services noted reoccurring safety violations, including the staff’s failure to maintain sterile surgical instruments, expired supplies and medication, rusty machines used on patients, dilapidated facilities, and concerns of rodents. It concluded that “the facility failed to provide a safe and sanitary environment,” remarking that the staff, which had not been trained in CPR, “did not know what a sterilization indicator was” and did not know how to properly use equipment.

Whole Woman’s Health’s terrible record of unsanitary and unsafe conditions demonstrates the importance of laws like HB2. Unfortunately, by siding with unscrupulous abortion providers, the Supreme Court disregarded the best interests of women.

Women deserve better.

This post was originally written for the Family Policy Institute of Washington: http://www.fpiw.org/blog/2016/06/27/opinion-supreme-court-disregards-own-standards-in-abortion-ruling/.