Wednesday, June 3, 2009

Why Abortion is Unconstitutional

*Below is a Constitutional Law assignment I did last year in which I, acting as a member of the Supreme Court, was asked to rule on the constitutionality of a state abortion ban in South Dakota, using my own ruling and reasoning. This is how a constitutionalist would approach the issue of abortion using the Constitution. I must say that this was an easy assignment to complete. It came naturally because I let the text do the talking.

08-002 South Dakota v. Planned Parenthood of South Dakota

Justice LUNA delivers the opinion of the Court

The Court today is faced once again with “the sensitive and emotional nature of the abortion controversy”[Roe v. Wade, 410 U.S. 113, 93 S.CT. 703 (1973)]; therefore because of these emotions, we must consider the issue of abortion in light of the Constitution’s text. If we as a Court do not limit ourselves to the interpretation of the text, we open the Constitution to swaying trends of society. However tempting it may be to account for evolving social norms, our task is to uphold the Constitution, not our own public opinion. It is not the Court’s job to decide whether banning abortion is morally or socially acceptable; it is the Court’s job to decide whether or not the statute in question violates the Constitution. More specifically, the Court must consider whether or not the Constitution prohibits a state’s banning abortion save in the case of protecting the life of the mother. In Roe, this Court ruled that a pregnant woman’s “right of privacy” through the 14th Amendment Due Process Clause’s guarantee of liberty allowed for the termination of pregnancy through abortion. However, it is this Court’s opinion that Roe was wrongly decided. Though we members of the Court always seek to rule rightly in constitutional matters, we are not infallible, and errors in interpretation are at times made. It is this Court’s duty, then, at the risk of eroding stare decisis, to hold fast to the Constitution even above precedent. The Court will first reconsider Roe, then turn to the constitutionality of the South Dakota statute before us.

The ruling in Roe is based upon what the Court holds as a 14th Amendment “right of privacy,” and this Court agrees that such a “right of privacy” does exist. This Court in Griswold v. Connecticut, 381 U.S. 479, 85 S. CT. 1678 (1965), held that a right of privacy emanates from a “penumbra” surrounding the First, Third, Fourth, Fifth, and Ninth Amendments. However, the Court realizes that these guarantees arising from the Amendments are specific in nature and serve not to diminish other rights guaranteed within the same document. We now consider the nature of the “right of privacy” as held in Roe.

The Court in Roe struck down states’ ability to prohibit abortions, holding that up to a certain point in term a woman’s “right of privacy” encapsulates the right to terminate her pregnancy while outweighing a state’s interest in preventing abortion. However, the Court drew this ruling from an overly broad interpretation of the “liberty” guarantee of the Due Process Clause. The “right of privacy” is not and cannot be guaranteed at all cost. No reasonable person would hold that something such as murder would be protected if done within the privacy of one’s own home. There are limits on what can be done by one even within the realm of privacy. Roe had no basis in the actual text of the Constitution itself. The ruling overlooked the textual guarantee of “life” which precedes “liberty” in the 14th Amendment. Moreover, it did so in preference for a “constitutional right” found nowhere within the text of the Constitution. If a ruling of the Court will have the effect of infringing upon a right guaranteed by the Constitution, the ruling cannot stand. In the case of Roe, the Court made such a ruling. This non-textual exercise of judicial activism cannot be perpetuated by this Court.

First, we must establish whether or not the fetus to be aborted is in fact in a “state of life” to be protected by the Constitution. Justice Breyer acknowledges in Stenberg v. Carhart, 530 U.S. 914, 120 S. CT. 2597 (2000), “Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing death to an innocent child.” Furthermore, Justice Kennedy has acknowledged that a fetus has life by noting “the legitimacy of the State’s interest in fetal life” in Ferguson v. Charleston, 532 U.S. 67, 121 S.CT. 1291 (2001). However, fetal life can neither be proven nor disproven by mere words. That is why the Court in Roe spoke of the point of viability. As the fetus reached viability, the mother’s “right to privacy” would decrease and the fetus’s right to life would increase. Though the Court does not embrace such a weak framework in which constitutional rights fluctuate over time, it is important to note that turning one’s eye to viability strengthens the argument for fetal life. With medical advancements, the time of viability has moved closer and closer to the time of conception. Furthermore, science has now conceived children outside of the womb through the practice of in vitro fertilization. With the possibility of survival for premature babies increasing and that human life begins at conception for “test tube babies,” the Court must realize viability at conception may in the future be a possibility. The Court then recognizes that human life has come into being at the point of conception whether or not the point of viability is met. Neglecting to protect this life is tantamount to not protecting the most basic of rights guaranteed by the Constitution. Therefore, we opine that life does begin and is protected by the Constitution at conception.

Specifically stated constitutional rights must always be held in the highest regard. If a right is stated within the text, it obviously holds great importance to those who drafted and adopted it. Moreover, those rights specifically listed must hold a “preferred position” in our jurisprudence [US v. Carolene Products Co., 304 US 144 (1938)] . These guarantees must be protected by all means with the highest level of scrutiny applied to measures alleged to infringe upon them. This approach was absent in Roe and in the name of constitutional preservation must now be applied.

In Roe the Court was correct in stating that a woman has a right to privacy; that issue was settled in Griswold. However, the Court erred in its over inclusiveness with regard to reproductive decisions within that right of privacy. By permitting the taking of a fetus’s life through a “right of privacy” found nowhere in the text of the Constitution, the Court completely disregarded and negated the “right of life” specifically guaranteed in the text of the 14th Amendment. Life is the supreme fundamental right, which must never be taken without due process of law. Without “life” there can be no “liberty,” no “freedom of speech,” or no other rights for the people of the United States. A nation that does not protect life cannot protect liberty. As this Court realizes that the “right of life” is fundamental and must be preserved above all else, we thus overturn Roe v. Wade.

The issue before the Court in considering the South Dakota statute to take life must be subject to strict scrutiny, in which the burden is on the state to prove that the statute is based on a compelling interest and is narrowly tailored. As in all matters of the Court, we must turn to the foundation of our jurisprudence–the Constitution. The 14th Amendment addresses the issue clearly stating, “...nor shall any State deprive any person of life, liberty, or property, without due process of law.” It is the opinion of this Court that the explicit guarantee of “life” in the 14th Amendment is reason enough to uphold any practice that seeks to protect it. However, the Court will seek to exhaust the concerns of critics of the South Dakota statutes in order to test the constitutionality of their concerns and the Court’s ruling.

There are those who doubt that the unborn children were to be protected according to the wishes of the Framers. The answer to their concerns is found within the Constitution’s Preamble. There, the Framers state that it was their desire to “secure the Blessings of Liberty to [themselves] and [their] Posterity.” The Constitution was not meant to merely protect the living but all future generations.

The most important response to critics of the South Dakotan statute is that they lack firm constitutional evidence to support a right to abortion. In no place within the text of the document is there any explicit or implicit protection of such a right; rather, the opposite is found–a protection of life. The only support for abortion that critics can provide is based on the guarantee of liberty extending a “right to privacy” to a woman to terminate the life within her womb. However, this approach is problematic in many ways. It infringes on a specifically guaranteed right of life found directly before liberty in the Due Process Clause, and the Constitution does not explicitly mention any right to an abortion. Therefore, we believe that the claims of Planned Parenthood of South Dakota have no firm constitutional support.

Instead, we as members of this Court can find nothing within the South Dakota statute that would violate the Constitution of our United States. On the contrary, this legislation seeks to galvanize and provide support for the constitutional guarantee of life. Rather than undermining rights given by our sacred document, this statute provides additional support to life, assuring its protection and the Constitution’s guarantee. We not only find this law to be within the protection of the Constitution, and indeed, we find it to offer protection to the Constitution itself. The state met the strict scrutiny and has showed compelling interest in enacting this narrowly tailored statute. For these and the aforementioned reasons, we uphold the South Dakotan statute banning abortion save to protect the mother’s life and reverse the ruling of the 8th Circuit Court of Appeals.


  1. Thank you for posting this."Certain unalienable rights" cannot be denied.

  2. No state or territory has removed the distinction made in its criminal homicide laws between "those who are alive and have been born" and "those who are alive and have NOT been born."
    Blackmun made this point in Roe, at n. 49 in the text and in fn. 54.
    No state or territory has so far been willing to penalize the chief murderer, the aborting mother, who actively seeks out a "hit man" (or "hit woman") to do the dirty deed for her.
    None will even treat a serial murderer (abortionist) as a murderer.
    By this, as Blackmun pointed out, the state fails to recognize the humanity of the unborn child. The unborn child is "human" (meaning human tissue) but not A human (being or person).
    Black slaves were recognized as human beings, though of a lower order ("untermenschen"), and their lives were protected from murder, at least in the books.
    The Nazis legalized the massacre of "untermenschen," mostly Jews, Slavs and Asians. Black people escaped their notice as there were few if any in Germany.
    The USA has classed "those who are alive and have not been born" as "untermenschen" as though human beings, of a lower order whose rights, if any, the born are not bound to respect.