Constitutional-Literacy-18

=**Section 18: Abortion**=

One of the biggest denials of human rights came from Roe v. Wade 1973. Since then, millions of babies have been killed. More unborn babies have been killed by abortion than the population of 25 U.S. states and D.C. This is the equivalent of executing every human in 25 states and D.C. The body count is rising by more than a million per year. In the //Roe v. Wade// case, the Supreme Court simply wrote a statute when ruling on this case, which violates Article 1 Section 1.

OR

One of the biggest rulings for women's rights and/or removal of government intrusion into personal lives as the Court ruled on a societal issue for the entire nation...an issue that was state by state until 1973

The 14th amendment's Due Process Clause was used by the Supreme Court in claiming their authority to rule in //Roe v. Wade// - "...nor shall any state deprive any person of life, liberty, or property without the due process of law." The Supreme Court used liberty for "reproductive choice," a euphemism for the right to kill your own child. The dissenters on the Court stated that an unborn child has the right to life. Hence, the debate that still continues today. It's an emotional topic...but the Constitution doesn't consider emotions, it considers authority.

The Supreme Court should have looked back and asked whether or not "liberty" meant the right to kill your own child in 1868. Why 1868? Because in 1868 the 14th amendment was adopted...it goes to original intent of the law/amendment being used. The second question should have been in 1868, did the term "person" include unborn children for the purposes of protecting their right to life? It's impossible to answer yes to both questions. Before //Roe v. Wade//, each state decided for their own state whether or not abortion was legal. One state may answer yes or no to the first question while another state could answer the opposite for the second question.


 * Comprehension Question: What question should we ask if we want to know whether the original meaning of the 14th amendment protects the right to have an abortion?**


 * Comprehension Question: What question should we ask if we want to know whether the original meaning of the 14th amendment protects the right to life of the unborn child?**

The question is whether or not the unborn child is a "person." The 14th amendment reads “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Some say that since the word "born" is used that this means any unborn child is not protected by this amendment. However, look closely at the reason for this amendment - it was a direct response to the Dred Scott ruling with the purpose of ensuring blacks their citizenship. However, the Due Process Clause wasn't just for citizens, it was also for non-citizens. For example, if a Swiss tourist was arrested for murder in the U.S., could that person be executed without due process? No. They still have the right to life unless due process. So, in 1868 was the unborn child a person?

Sarah Weddington argued for Roe that the unborn baby had no constitutional rights citing two previous cases. What rights would the unborn baby have? Weddington worked to get the argument away from the baby's rights by arguing women's "reproductive rights." Again, what about 1868? What were the rights of the unborn? In 1791 (year the Bill of Rights was adopted), the experience with abortion was mixed. The Founding Fathers were certainly against abortion, but it was only illegal after quickening, which meant when the mother first felt the baby moving. In 1791, medical science didn't detect the baby and so it was known that the baby was alive until the baby was felt moving. By the mid-1800s, medical science began to catch up with reality. Even in Roe v. Wade the Supreme Court acknowledged the anti-abortion mood of the nation and the medical profession. In 1868, 30 out of the 37 states had significant bans on abortion by the time of the 14th amendment.

The Texas law banning abortion (the law in question in the Roe case) was adopted in 1854 - long before the 14th amendment. In 1973, anti-abortion laws in states had typically been in place for about 100 years, roughly at the time of the 14th amendment's adoption, which shows that in 1868 the widespread opinion was that there was no liberty for women to kill an unborn child and it was recognized that an unborn child was a person with the right to life. If the Supreme Court would have looked at the true history of the 14th amendment, the Roe v. Wade case would have had a different outcome.


 * Comprehension Question: What historical evidence shows that in 1868, when the 14th amendment was passed, a "person" included an unborn child?**

How did the Supreme Court get it wrong then? They looked at a long history to try to find a basis. Keep in mind, before medical science was able to understand conception, quickening was when life was determined. Overall, the Supreme Court basically created its own right to abortion out of thin air. They cited nine cases as justification. See if you can make the same connections the Supreme Court made in 1973.
 * (1) Union Pacific Railroad v. Botsford 1891 – Mrs. Botsford was injured on the railroad and to determine extent, the RR convinced a court to force her to have a medical procedure. The Supreme Court reversed the lower court decision saying it was against Mrs. Botsford’s rights.
 * (2) Stanley v. Georgia 1969 – held that possession of obscene material in one’s own home was protected.
 * (3) Terry v. Ohio 1968 – upheld the conviction of two men carrying concealed weapons; police officer patted down the two men before interviewing them. The court said it was okay for the police officer’s own safety.
 * (4) Katz v. United States 1967 – recording a person’s telephone conversation (without them knowing) is a violation of 4th amendment and violates privacy. The Supreme Court also cited 2 other search and seizure cases. à Note that so far all of these cases deal with privacy, but have nothing to do with reproductive freedom.
 * (5) Meyer v. Nebraska 1923 – a teacher was convicted for teaching a foreign language to grade school children – taught German in a Lutheran school; the court ruled that the law was unconstitutional; __parents have the right to direct the education of their children__.
 * (6) Palko v. Connecticut 1937 – Palko was charged with 1st degree murder, but convicted on 2nd degree; CT appealed and won a new case; Palko was then convicted for 1st degree murder; did this violate no double jeopardy? The Supreme Court upheld the 2nd conviction saying double jeopardy isn’t a fundamental right (like speech, which is considered a fundamental right). __Dealt with the issue of double jeopardy.__
 * (7) Loving v. Virginia 1967 – laws against interracial marriage were unconstitutional. Obviously, the Supreme Court was stretching the Roe case way out of proportion in terms of using other privacy rights cases to justify killing an unborn baby.
 * (8) Skinner v. Oklahoma 1942 – Court ruled that the Oklahoma statute that ordered the compulsory sterilization of any person convicted of two or more felonies was unconstitutional. Skinner was convicted of stealing chickens and robbery. He was ordered to be sterilized. The Supreme Court said that went too far. During the age of Hitler in Europe, it’s easy to understand why sterilization would be seen as negative. In Skinner, it was unconstitutional to force a person to undergo surgery to prevent having a child, but in Roe it allows the taking away of life.
 * (9) Griswold v. Connecticut 1965 – the only case used by the Supreme Court in Roe v. Wade that comes even close to justifying their ruling – the Supreme Court ruled it was unconstitutional for a state to prohibit the distribution of birth control devices to married couples. In reality, the Griswold Case gave the Supreme Court the precedent to act like a legislature, which is exactly what they did in Roe.

In //Roe v. Wade//, the Court wrote what can be done in each trimester. An amendment to the Constitution shouldn’t be necessary to protect the life of the unborn, because in reality the 14th amendment already protect this. What’s needed is for a Supreme Court to not want to implement his/her views, but rather uphold the original intent of the Constitution. It should be the other way around – an amendment needed to allow abortion. Basically, the Supreme Court decided on its own when the right to life begins. Even though DNA is present immediately in the unborn child and the unborn child has a heartbeat, the Supreme Court has given citizens the right to end the life of the unborn child without any basis from the Constitution.

Before the 1973 case, abortion was a state by state issue. Basically today Americans are on board with the Court making legislative decisions if it's one they support. This is not what the Founders intended in terms of the federal court system.


 * Discussion Question: How would America be different if the Supreme Court did not legalize abortion (or make a ruling that states could not ban abortion)...which level would be dealing with it?**


 * Discussion Question: How was the Roe v. Wade ruling more of a Supreme Court written law that a ruling on the Constitution?**

**Overall: Summarize the main idea of this section and why it's important.**

Back to the Constitutional Literacy main page