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The Tenth Amendment should legally overturn Roe v. Wade

Staff Columnist

Published: Friday, February 1, 2013

Updated: Friday, August 23, 2013 16:08

January 22 marked the 40th anniversary of the landmark Supreme Court decision Roe v. Wade, which declared abortion a constitutionally protected right. Some people heralded this ruling as a victory in the women’s rights movement while others declared it a travesty and asserted that the ruling legalized the murder of unborn children.

 However, regardless of whether a woman should be allowed to get an abortion, the decision in Roe v. Wade was judicial activism. Whether abortion should be legal or not, there is no “right to privacy” embedded in the Fourteenth Amendment, nor is there anything that could be reasonably interpreted to render anti-abortion laws unconstitutional. Therefore, according to the Tenth Amendment, Roe v. Wade should be overturned, and legalization of abortion should be a state issue.

In the 7-2 majority decision in 1973, the Supreme Court wrote “the right of privacy … in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions … is broad enough to encompass a woman’s decision on whether or not to terminate her pregnancy.”

The cited section of the Fourteenth Amendment, Section I, says in relevant part that “[no] state shall deprive any person of life, liberty, and property without due process of law.” The Supreme Court asserted that this indicated a “right to privacy.” However, nowhere in that clause does it say anything of the sort. “Liberty” is a general term to indicate one’s freedom, not a term to indicate a freedom to do any specific activity, as the “right to privacy” is being used to mean. There is nothing in the Fourteenth Amendment or anywhere else in the Constitution that indicates these laws are unconstitutional. The Supreme Court’s assertion to the contrary is pure judicial activism.

Since the “right to privacy” does not actually exist in the Constitution, the Tenth Amendment protects the rights of states to pass laws banning abortion. This Amendment grants to the states any “powers not delegated to the United States by the Constitution, nor prohibited by it to the states.” Since, as established above, there is nothing in the Constitution concerning abortion or the alleged “right to privacy,” the regulation of abortion is a state issue. Even if the laws in question are uncommonly silly, as then-Justice Potter Stewart described a law prohibiting contraceptives, they are not unconstitutional.

My pro-choice opponent in this debate will point out that there are many benefits to having abortion legalized at a federal level, as opposed to legal in some places and illegal in others. However, “I wish it were so” is not a legal argument. Whether America would be better or worse off with federally legal abortion, the Constitution makes it a state issue. As the supreme law of the land, this trumps any other argument.

My opponent will also point out the numerous federal programs and agencies that benefit the public, and she will say that since these are handled federally, abortion should be as well. However, just because these programs are handled federally does not mean that the federal management of them is constitutional. I think the Tenth Amendment renders all but a few federal agencies and programs unconstitutional. While the Supreme Court has not ruled that way, this does not mean they are correct.

Additionally, even if federal regulation of abortion is constitutional, judicial activism is not the right way to handle it. Federal programs like Social Security and the Department of Education have all been created by Congress, not the Supreme Court. If federal abortion regulation is constitutional, this is where it should originate. After Roe v. Wade is overturned, Congress could pass a law forcing all states to allow abortions. Most likely this new law would be challenged on the grounds that it violates the Tenth Amendment. The legal challenge would probably make it all the way to the Supreme Court. At that point, the Court would either decide that the law is unconstitutional, as I believe it would be, or constitutional, as my opponent believes.

However, the Roe v. Wade decision did not rule on any federal law, because there was none at the time. Instead, it invented logic that rendered a Texas state law unconstitutional. Even if federal regulation of abortion does not violate the Tenth Amendment, it should be handled not through judicial activism but through legislation. To create a new right to abortion through the Supreme Court, as opposed to through Congress, oversteps constitutional bounds, and it is time to reverse the 40-year-old decision.  

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