The Social Reformer's Definition of Life: Demeaning the 'Sanctity of Life' for an Enhanced 'Quality of Life' (Roe v. Wade, revisited) | Eastern North Carolina Now

    Many believe that abortion is not an area that is reserved to the federal government to regulate. While a State has the inherent police powers to regulate for the health, safety, welfare, and morality of its people, the federal government has no such police powers. The States have this power to regulate behavior and enforce order within their borders because of the reservation of powers under the Tenth Amendment. The federal government, on the other hand, is a creation of the States and has limited powers and therefore no police power is assumed by it. The federal government was created by the federal compact formed by the States in drafting and ratifying the US Constitution. The federal government can only regulate and burden individual rights when: (i) there is a compelling governmental interest; (ii) when the law or policy is narrowly-tailored to achieve that goal or interest; and (iii) the law or policy applies the least restrictive means for achieving that interest.

    The balance of power between the States and the federal government, as embraced by the US Constitution, was an issue that concerned the States deeply. Patrick Henry was so distrustful of the Constitution that he urged Virginia to secede from the Union and not ratify it. He believed it was poised for abuse by the federal government, would ultimately result in tyranny, and would undue all that was fought for in the Revolutionary War. He believed the lynchpin of the American system was the recognition and protection of strong, sovereign, independent States which would keep checks on a federal government that was infused with certain limited delegated powers. This was our concept of federalism, or Dual Sovereignty.

    Federalism is the constitutional division of powers between the federal and state governments. It is widely regarded as one of America's most valuable contributions to political science and the most important 'check' in our system of checks and balances on the power of our centralized government.

    Again, James Madison, "the father of the Constitution," explained the separation in terms we can all understand: "The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce.... The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people." [Federalist No. 45] In a letter that Jefferson wrote, he emphasized that states are not "subordinate" to the national government, but rather the two are "coordinate departments of one simple and integral whole.... The one is the domestic, the other the foreign branch of the same government."

    In Federalist No. 39, an extremely important essay which discussed the nature of the government, Madison wrote: "[The nature of the government] in relation to the extent of its powers is federal. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. The most effectual precautions are taken to secure this impartiality, to prevent an appeal to the sword and a dissolution of the compact."

    Since governments tend to overstep the bounds of their authority, the Founders knew it would be difficult to maintain a balanced federalism. In fact, that was one of the central issues raised by the state ratifying conventions as they met to decide whether to approve the new Constitution. Responding to this concern, in Federalist No. 31, Alexander Hamilton expressed his hope that "the people will always take care to preserve the constitutional equilibrium between the general and the state governments." As he wrote: "This balance between the national and state governments forms a double security to the people. If one government encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by the certain rivalship which will ever subsist between them."

   He went on to say, in Federalist No. 31: "The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty...... As in republics, strength is always on the side of the People, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over the Union (ie, the federal government).... The safest course is to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Everything beyond this must be left to the prudence and firmness of the People; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments."

    And so, in the end, the States spoke out clearly and strongly in their ratification conventions. They would not give up sovereignty. They would not adopt a Constitution without a Bill of Rights. They didn't trust that a federal government would be able to police itself and not attempt to abuse and enlarge its powers and tread on the rights reserved to the States and to the people. The federal government was never intended to regulate abortion nor define life. The statements made by Madison make abundantly clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people and the powers it reserves to the States.

    Not only did the Supreme Court err by removing the regulation of abortion by the States, it did something far worse. It used its lofty judicial powers not for strict interpretation of the US Constitution, but rather to fashion a remedy for a pressing social issue - the increasing rate of unwanted pregnancies by those who can't properly provide for them.

    The Burger Court in Roe decided that the Constitution must evolve, and it must be flexible enough to consider current public opinion when deciding whether a right was sufficiently "fundamental" to deserve constitutional protection.

    In an interview with the NY Times Magazine in 2009, Justice Ruth Bader Ginsburg made the following statement: "Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of." So, instead of Roe being about a woman's right to choose, Justice Ginsburg actually thought it was more about getting rid of unborn babies of an "undesirable" portion of our population, because after that, Medicare funding became available for abortions (which she saw as affecting predominantly one segment of the population). She came to question that perception when the Court decided Harris v. McCrae eight (8) years later in 1980, upholding the Hyde Amendment, which was passed in 1976 by Republicans and which forbids the use of public funding for abortion. But the Amendment has rarely been used or state funding has taken its place, since the ACLU and other groups have argued that the Amendment targets blacks and other low-income minorities and denies them abortion services (ie, since abortion services are provided/used mainly by low-income minorities, denying them unfairly targets minorities!) [See Emily Bazelon, "The Role of Women on the Court"]. So, social engineering appears to be what the abortion issue was and is all about.

    But it is also an issue strongly associated with Women's Rights.

    In 2005, Ginsburg, a lifelong proponent of Women's Rights, addressed NY University's law school and said that if she were on the Court at the time, she would have secured the right of a woman to have an abortion even more firmly through the Equal Protection Clause. She said she would have argued that women cannot participate in society equally with men without the ability to control their reproductive lives. Perhaps Ginsburg had a mind melt with Justice Sandra Day O'Connor. In Casey v. Planned Parenthood (1992), Justice O'Connor wrote: "The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives." That case went on to remove any obstacles in the way of a woman getting an abortion, such as consent by her husband.

    This case is a perfect example of judicial activism. This is what judicial activism sounds like and smells like.

    We all know that Planned Parenthood is prominent in providing abortion services. It receives about $1 million each day in taxpayer funds. And we know that our pro-abortion President and Democrat leaders refused to cut funding to Planned Parenthood last year. When House Speaker John Boehner asked President Obama how much he was willing to cut from the organization, he said "None, zip, zero, nada." Vice President Joe Biden even told Boehner the Obama administration was prepared to take the battle to voters and allow a shutdown of the federal government over Planned Parenthood funding. This year, the Susan G. Komen Foundation, a breast cancer charity, made a decision to cut funding to Planned Parenthood. A few days later, however, it reversed that decision, after intense pressure from pro-abortion groups. As one commentator put it: "We have witnessed an absolute shakedown of an organization that simply wants to save the lives of women through cancer research."

    But what most people don't know is that Planned Parenthood was founded by Margaret Sanger in 1916 for the purpose of "stopping the multiplication of the unfit." Eugenics. She boasted that the services provided would be "the most important and greatest step towards race betterment." But it even more sinister than that. Sanger united with eugenics financier and businessman, Clarence Gamble, to find several personable black ministers who could help them promote and sell their services as 'community health and welfare services.' As Michelle Malkin described in her recent article on the Planned Parenthood founder: "Outright murder wouldn't sell. But wrapping it under the egalitarian cloak of "women's health" -- and adorning it with the moral authority of black churches -- would. Sanger and Gamble called their deadly campaign 'The Negro Project.' "

    The social problems caused by uncontrolled pregnancy was one that the Supreme Court no doubt entertained in Roe v. Wade. In fact, it was later learned that the plaintiff, Norma McCorvey, really never intended to push her case any further once her pregnancy progressed and she gave birth. She was pressured by pro-abortion groups to appeal her case to the Supreme Court. If the Court could somehow find that a woman has an inherent right to terminate her pregnancy, then populations could more easily be controlled. Women wouldn't be "saddled" with babies they didn't want or never planned for. Cities wouldn't be overly burdened with children that its institutions would have to help raise and care for. Society would be spared exceeding numbers of useless idiots.

    John Holdren, President Obama's science czar, is an outspoken proponent of forced abortions and mass sterilizations. For those old enough to remember or those who read their history, only a few years into his presidency of the Third Reich, Hitler instituted a similar policy of forced sterilization. Any citizen who was deemed "unfit" (insane, infirm, disabled, malformed) or didn't possess characteristics suitable enough for the "master race" were either institutionalized and sterilized or received a letter informing them that they had to report and be sterilized. Holdren is a self-professed protege of eugenicist Harrison Brown, whom he credits with inspiring him to become a scientist. Brown envisioned a government regime in which the "number of abortions and artificial inseminations permitted in a given year would be determined completely by the difference between the number of deaths and the number of births in the year previous." He urged readers to "reconcile ourselves to the fact that artificial means must be applied to limit birth rates." He likened the global population to a "pulsating mass of maggots." [Michelle Malkin, "To Stop the Multiplication of the Unfit']

    To some, the abortion ruling in Roe is the most significant decision in modern history. To those who learned about such horrors as what happened under Dr. Kermit Gosnell in Philadelphia, where hundreds of late-term, healthy, living, breathing viable babies were aborted live and then systematically killed (including with scissors), they ask themselves "What have we done?" And to others, the fight is not over to give the unborn the rights they deserve. They continue to respect the sanctity of life. Social problems must be addressed by the legislature and not by the Courts, because in doing so, legal analysis will often be skewed to the result that solves the problem. And the funny thing about jurisprudence is that courts hardly ever re-invent the wheel. They just continue to re-cycle and re-cite prior decisions.

    The growing opposition to abortion-on-demand has led to a number of proposals, including some which are my own, which I've attempted to summarize below:

    1). Amend the US Constitution (much in the same way that the 14th Amendment did to over-turn the Dred Scott decision). Senator Rand Paul suggests a Human Life Amendment to the US Constitution. His father has already introduced such a constitutional amendment.

    2). Congress should define life. The "Life at Conception Act," which was introduced in January 2011 by Rep. Roger Wicker (R-Miss) and which was co -sponsored by Senator Rand Paul, would define all fetuses to be persons with a right to life guaranteed by the 14th Amendment. It would effectively negate Roe v. Wade. Such a law would permit states to declare abortion to be murder and to outlaw new fetal stem cell research and some contraception and fertility treatments. In 2005 and 2007, Rep. Ron Paul introduced the "Sanctity of Life Act," which would define human life as beginning from conception, removing abortion from federal jurisdiction.

    But life doesn't necessarily have to be defined as beginning at conception. To many, a fertilized egg is hardly a person. To recognize that leaves a narrow window of opportunity available for the morning after pill or something similar. To emphatically state that a fertilized egg is a person ultimately gives the government the right to place the woman's body under the control of the government. Reasonable minds can come up with a solution that doesn't involve the highest Court getting in the business of legislating abortion from the bench. This approach is infinitely more compatible with the 14th Amendment and with the US Constitution in general.

    A constitutional amendment on the definition of life would provide better protection than an act of Congress because the amendment would be supreme law.

    3). State nullification of the Roe v. Wade decision. States can pass a nullification bill which, in effect, says that the Roe decision exceeds the authority of the Supreme Court to strictly interpret the US Constitution and is therefore null and void and not to be enforced in the State. The bill would have to state something like this:
"The government formed by the Constitution of the united States was not the exclusive or final judge of the extent of powers delegated to itself. Likewise, the authority of the Supreme Court extends only to the strict interpretation of the Constitution and not to any arbitrary decisions designed for social purposes. The States, the parties to the federal compact (which brought the government into existence for limited responsibilities), have the right under that compact to judge for themselves the extent of powers so delegated and the interpretation of the Constitution that they themselves created and ratified. We, the People of ______ (state), will not submit to the application of force or judicial decision to undermine rights and powers reserved in the Ninth and Tenth amendments and to reduce this State to obedience to the federal government.

    The State of ______, having the right, and being duty-bound, to interpose to address any usurpation of power and rights delegated in the US Constitution and for the protection of the liberties of its citizens, declare that the Supreme Court's decision in Roe v. Wade invades upon the State's powers and is therefore null and void. The People of this State will henceforth hold themselves absolved from all further obligation to be bound by that decision.

    No state or federal court shall adjudicate a case that relies on the Roe v. Wade decision.

    No federal agency or agent shall attempt to interfere with the force of this bill. They will have no authority to do so within the borders of this State."

    4). Leave it to the States to define life as they wish. Let states determine the point of fetal viability. Congress would have to legislatively limit the jurisdiction on the federal courts such that they would be prohibited from hearing any case or relying on any judicial precedent when it comes to the matter of how life is defined.

    5). Leave the issue of abortion to the States. Pressure Congress to pass HR 300, sponsored by Rep. Ron Paul, which reads: "Prohibits the Supreme Court and each federal court from adjudicating any claim or relying on judicial decisions involving: (1) state or local laws, regulations, or policies concerning the free exercise or establishment of religion; (2) the right of privacy, including issues of sexual practices, orientation, or reproduction; or (3) the right to marry without regard to sex or sexual orientation where based upon equal protection of the laws."

    HR 300 would negate the effect of Roe v Wade by removing the ability of federal courts to interfere with state legislation to protect life. So if North Carolina or Texas or any state passes a law against abortion, no one can challenge that law in federal court. As Ron Paul explains: "This is a practical, direct approach to ending federal court tyranny which threatens our constitutional republic and has caused the deaths of 45 million of the unborn."

    This bill was originally introduced in 2005 as the "We the People Act."

    6). Define abortion as an act of violence against an unborn. As Ron Paul explained: "I see abortion as a violent act. All other violent acts are handled by the States - murder, rape, armed robbery.. Take away the jurisdiction of the government by a majority vote of the House."

    7). Abortion should be allowed in the first few weeks (before a heartbeat) and then after that, there should be consequences, including having the child and putting it up for adoption. If the church is pushing for the right to life, then one solution is to have the church be in charge of adopting and raising the children. That might sound as if I'm pushing the burden on the Catholic Church, but wouldn't that be one way to help push back against the decay that has resulted in allowing women raise children who aren't equipped to do so or were motivated solely for a government check and a way to raise children with good solid morals? Besides, adoption is always a decision one can live with. Plus, sometime down the road, the woman might have a change of heart and try to be part of that child's life in some way.

    8). Schools should push abstinence. Schools should promote morality and that means to bring religion back into the public schools. The fact is that humans, like almost all other species, must reproduce to propagate the species. Sex is how we, biologically, reproduce. Since we have become such an amoral, sex-driven, gratification-based culture, women have forgotten the duty, and burden, they bear by being the partner that develops and brings forth life. Young women need to be reminded of the significance of sex for the role it plays in biology and in evolution and schools and other authority should be highly critical of decisions to engage in a sexual relationships. Only with a strong background in biology and religion (and an overhaul of the welfare program which rewards teen pregnancy and the creates the mentality where mothers encourage their daughters to get pregnancy for security) teach dependency as a way of life) can we expect to fight the abortion problem. Because religious reverence and reflection has been removed from anywhere a child may go, except Church and perhaps home, momentary physical pleasure is the new social norm.