There are two options.
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While some of our readers wonder why The Resurgent is so
singularly focused on abortion right now, I figured it’s worth addressing some
points about Roe v. Wade being
First, in defense of our site, to say that we are singularly
focused on abortion is a little much.
The news cycle is currently about abortion bans in at least four states,
one of which is The Resurgent’s home. As
one comment mentioned, this issue would
not be front and center but for the insanity passed by states like New York and
statements made by Ralph Northam. As one
twitter account pointed out regarding the left’s stance on abortion, quoting
Yoda, “the shroud of the dark side has fallen.” We now know what the left
wants. In case it hadn’t been clear
every time they oppose any minor imposition on the “right” to an abortion.
But that segues us into a discussion of the nature of abortion as a right and what happens if and when Roe is overturned.
This isn’t a discussion of my personal views on the
subject. There are really only two
- The issue reverts back to the states.
- Our reliance on substantive due process trumps states’ rights.
The right tends to be full of proponents of federalism. Using the tenth amendment as our guide, issues
not covered by the constitution are left up to the states. Under this rubric, overturning Roe v. Wade simply ends the federal
recognition of the right to an abortion.
States are free to permit it, to subsidize it, to ban it, or to
criminalize it. In California and
Illinois, abortion will be legal until the child is 37 years old. In other states, there may be several
criminal penalties for aborting a child or perhaps even for conspiracy to
abort. There are a number of states that
are set to outlaw abortion the moment Roe is overturned.
Yet the second option might be more likely since the left
will be forced to lie down in the bed they made. For decades, the left has relied on the
Supreme Court to concoct imaginary rights using substantive due process. It goes like this: There is an implied right to
privacy in the 4th amendment.
Since the 4th amendment applies only to the federal
government, we must find a way to make it apply to the states. We have done that through the incorporation
doctrine using the 14th amendment to apply rights to the people of
the various states. Courts declare that
certain acts are “liberties” under the 14th amendment. So the right to privacy, and by extension
abortion, is a fundamental liberty guaranteed by liberty prong of the due
process clause of the 14th amendment and the 4th amendment.
But the 14th amendment does not end there. There are two additional pieces of
information relevant to abortion’s status as a fundamental liberty. The first is that liberty is not the only
consideration of the 14th amendment.
The amendment is also concerned with the right to life. Life, Liberty, or Property. As medical science advances and as more
states impose restrictions on abortion, there would undoubtedly be a growing
legal consensus that the unborn have a constitutional right to life. If…if that happens, then states’ rights
cannot trump the 14th amendment.
The second piece to this puzzle is that fundamental liberties are not
absolute. Liberty can be deprived WITH
Now you may ask, what does a Civil War Reconstruction amendment have to do with protecting the unborn? That wasn’t discussed at ratification! And I say, you’re right. And neither was abortion. But this is the bed that has been made. The left made the 14th amendment about everything other than correcting the wrong of slavery. We can always revisit substantive due process if the left doesn’t like where it leads regarding abortion.
The 14th amendment may require a federal ban on
My personal views
1: If we get back to a stronger sense of federalism, we’d
have to see how states address abortion.
2: I hate substantive due process. So I wouldn’t want to use it to ban abortion.
The best option would be a constitutional amendment. We can discuss details later. We can ban it via amendment or we can enshrine it as a constitutional right via amendment. Either way, I want the uncertainty gone. We need to know one way or the other.