Democrats are right about a national approach to abortion, but not on their ‘solution’

In my last column, I proposed that the United States Supreme Court go beyond referring the regulation of baby abortions back to the states to remind the nation that the Constitution was adopted to protect life, as it does in the “privileges and immunities” clause of Article IV, Section 2 and the “due process clause” of both the Fifth and the Fourteenth amendments, and by implication in Congress’s power “to provide for the common defense.” If the government established by the Constitution does not protect life, including the liberty and property indispensable to its security, it would be a mockery of governance. This applies equally to state governments under its authority.

The Constitution’s division of authority between the federal and government and the states was never meant to be so air tight that the abuses at one level would be of no concern to the other. Let us recall that the doctrine of “states’ rights” that for so long protected slavery and forcible racial segregation in one-party Democrat states put them at odds with our nation’s fundamental principles, and no less their party’s Big Government policies that have infringed on state and local government, along with private enterprise. It is no surprise that the states’ power to regulate health, welfare, safety and morals should find itself in thecrosshairs of Democrats when they contemplate with horror the return of the regulation of baby abortions to where the Constitution originally placed them. That’s why Senate Majority Leader Chuck Schumer has called for that body to pass a bill that would federalize Roe v. Wade.

In short, all levels of government are charged with protecting life against all threats in a division of labor approach, not a yes or no approach. The object is not to put any innocent lives in danger but to cooperate in a common duty. So, the question arises, what has called this beneficial governmental cooperation into question?

The answer is simple. In both the treatment of our black citizens in the past and our unborn (and even born!) children today, those in favor of oppression and death have denied them personhood. In Dred Scott v. Sanford (1857), the U.S. Supreme Court held that members of the African race are not persons, in spite of the fact that the Constitution called them precisely thatin three clauses (counting 3/5s of each slave for House representation, importation of slaves and return of runaway slaves). In Roe v. Wade (1973), the Court ruled that unborn human children are not persons entitled to the protection of the Constitution and that their mothers have a right to kill them, finding a non-existent right to privacy in the very provisions that protect life.

Although the 13th Amendment abolished slavery, Dred Scott was never rescinded, leaving a permanent stain on our jurisprudence. Roe was affirmed by Casey v. Planned Parenthood (1992) for no other reason than that abortion had become customary. The Mississippi case now pending before the Court offers it the opportunity to remove that stain. The infamous leak of the decision and opinions indicate that that result is imminent. The question is whether sending abortion back to the states is sufficiently “cleansworthy.”

The difficulty is this. The states, Red and Blue, are divided on this question. As Lila Rose, President of Live Action, a pro-life organization, said in response to Tucker Carlson as he waxed enthusiastic about de-federalizing abortion: “Babies will still be dying.” Of course, it is possible that sending this issue “below”will stir a lively debate on the merits of the question, but it is pretty clear that much of it will fall on deaf ears as California and New York already contemplate paying women from out of state to travel to their abortion-welcoming jurisdiction to kill their babies. As at least 20 states now place limits on abortion by a bit more and a bit less than the 15 weeks that Mississippi imposes (and which by the way mirror European governments!), we should not expect that the number of abortions should shrink very much by de-federalizing them.

So, we're supposed to be comforted by the possibility that soon states rather than the U.S. Supreme Court will decide which babies live or die? This is justice?James Madison wrote in The Federalist No. 51: “Justice is the end [purpose] of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or liberty be lost in the pursuit.” Unborn children are as entitled to justice as any other person in our society. As long as it is denied to these most vulnerable of all persons, the liberty of the rest of us to do justice to them is lost too. And it is clear that the elderly and disabled are also in danger.

The elephant in the room which has made debate over abortion less than purposeful is the widespread failure to acknowledge that the Constitution is a document not merely of civil rights but of natural rights. The supreme law of the land was not merely a “bundle of compromises” but its framers’ best efforts to secure the natural rights to equal liberty and government by consent. Those ideas governed their judgment, inspired as they were by the Declaration of Independence that proclaimed them to the world. Many lawyers today, conservative no less than liberal, deny that the God-given rights central to the Declaration have any legal status. But they are wrong. On the centennial of our nation’s independence in 1876, in Volume 18 of the US Code, the Congress published a section entitled “The Organic Laws of The United States of America.” That section includes four documents: 1) The Declaration of Independence; 2) The Article of Confederation; 3) The Northwest Ordinance; and, 4) The Constitution of the United States. The Declaration is thus not merely an expression of opinion, but binding law.

So-called “positivists” who contend that anything not expressed in the Constitution or in statutes are merely “subjective preferences” or “values” have been ignoring our organic law for over a century. The truth is, the rights to “life, liberty and the pursuit of happiness” for all citizens are the “warp and woof” of our constitutional system. Those in the pro-life movement who have appealed to the Declaration are better informed than many “learned” people.

Whatever political constraints there are on the U.S. Supreme Court as far as rescinding Roe v. Wade is concerned, there can be no doubt that there are no moral ones. If it is right to affirm life in the Declaration of Independence and the Constitution, it is right to protect it in state and federal law. Whether that requires federal law or a constitutional amendment is a prudential question which we cannot in any case avoid. Doing what is right is always the most prudent thing to do.