When it comes to abortion, the Constitution speaks for itself

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In the coming days, it is certain that Republicans in the Senate will confirm Judge Amy Coney Barrett to sit on the highest bench in our land. During the judge’s confirmation hearing, several Democratic senators made attempts to frighten Americans into turning out at the polls by claiming that Barrett’s confirmation threatens their rights, including a so-called “right” to abortion — one that, quite frankly, does not exist within our nation’s supreme law.

 

“The Constitution of the United States protects a woman’s right to choose whether or when to become a parent, and it protects a woman’s right to choose abortion,” said Sen. Kamala Harris, D-Calif., and the Democratic candidate for U.S. vice president.

 

This statement is not a fact and is widely debated among legal scholars. The Constitution does not include the word “abortion” or the phrase “right to choose.” So how has America and how have her legislators, many of whom are lawyers or have studied the law at great length, come to believe in the right to abortion?

 

To be clear, this is not a petty attempt to strawman Sen. Harris or any pro-choice signatories by suggesting that they see the word “abortion” in the Constitution. Rather this is to challenge their position of absoluteness that the Constitution so strongly supports abortion.

 

Sen. Marsha Blackburn, R-Tenn., made a very significant point during the hearing by accurately clarifying that “Roe v. Wade is not an amendment to the Constitution.”

 

At the time Roe was decided, the majority opinion held that the implied right to privacy, included in the due process clause of the 14th Amendment, was broad enough to encompass a woman’s “right” to choose, although it was not explicitly stated. Many argue that this decision was an act of judicial decree.

 

So yet another question ensued at the hearing. Sen. Dianne Feinstein, D-Calif., pressed the judge on whether or not she agrees with Justice Antonin Scalia’s opinion that Roe was wrongly decided. Barrett answered that for any issue that comes up within her lifetime appointment, including abortion, she will “follow the law.”

 

As a self-proclaimed originalist, Barrett means that for any case she will refer to the words of the Constitution and interpret their meaning as was intended at the time of its ratification.

 

To determine if the founders intended for women to have a “right” to decide whether or not their unborn child can be terminated, we must look to history.

 

In promoting the ratification of the Constitution in the “Federalist Papers,” Alexander Hamilton wrote the following on the judiciary and its role in our government:

 

“The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

 

In contrast to Hamilton’s statement, today’s judiciary in some instances has become dangerous towards the preservation of rights through its decision making — especially in the case of Roe. This is because abortion ultimately deprives the smallest of humans of their right to life.

 

Section 1 of the 14th Amendment holds that states cannot “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

 

Ironically, the ratification of the 14th Amendment actually overturned another controversial decision by the U.S. Supreme Court, that of Dred Scott v. Sandford. In 1857, the 7-2 majority opinion in this landmark ruling held that Scott, a slave, had no right to sue for his freedom because under the Fifth Amendment he was “private property,” not a citizen with rights and, in effect, not a person as defined under the Constitution.

 

When Roe was decided nearly 47 years ago, the majority opinion determined that the word “person” under the Constitution did not include the unborn. However, today, technology allows us to recognize the individual DNA, organs, and heartbeats of children in the womb. There is no scientific evidence to suggest that fetuses are not their own beings and therefore can somehow be denied the right to life and the equal protection of the law.

 

The nation’s founders wrote in the Preamble to the Constitution that the role of the federal government is to “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”

 

In order for the judiciary, and the government as a whole, to uphold that purpose and establish justice and liberty for human beings of all sizes, we must recognize that abortion violates the Constitution.

 

Check out this episode of the Falkirk Center’s podcast: