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What Happens If Roe Is Overturned?

There are two options.

This article is brought to you by the comment section.

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 overturned.

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 options.

  1. The issue reverts back to the states.
  2. 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 due process. 

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 ALL abortions. 

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.

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