Countering the Abortion Ethic,
by John F. McManus


When the Supreme Court nullified laws against abortion in its 1973 Roe v. Wade decision, the vote was 7-2. One of the two dissenting justices was Byron White, who stated: "I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers...."

In a 1992 abortion case emanating from Pennsylvania, Justice Antonin Scalia voiced virtually the same constitutional position, writing: "The issue is whether it [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion ... because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed."

It is comforting to realize that, in the minds of some who have served on the Supreme Court, the Constitution remains the law of the land. And their thinking is completely sound: If power to address a matter is not granted in the Constitution, the federal government has no business making a ruling.

But the Constitution has not been the guide of some other justices, whose judicial philosophies have been shaped instead by their self-appointment as social engineers. Where the 1992 Pennsylvania decision could have led to overturning Roe v. Wade, five of the jurists refused to take that step. Three of them, Justices O'Connor, Kennedy, and Sourer, flagrantly sidestepped the Constitution and offered in their decision that reversing Roe would be "to refuse to face the fact that for two decades of economic and social development, people have organized intimate relationships and made choices that define their view of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail."

By placing "economic and social" considerations above all else, these judges pave the way for countenancing the killing of a newborn infant who arrived before an abortion was arranged, or whose parents suddenly realized how upsetting to their "economic and social" lives a newborn babe can be.

While the Constitution says nothing about abortion (meaning that the federal government has no business saying anything about it), the document does address the right to life. The Fifth Amendment states that no "person ... shall be deprived of life ... without due process of law." And the 14th Amendment forbids any state the power to "deprive any person of life ... without due process of law."

So while the Constitution protects life, abortion has accounted for the deaths of more than a million infants each year since 1973. How can this be? The answer stems from the absence of a legal definition of human life. If a person is defined as a living human being from the moment of conception, then abortion would indeed be murder and it would never be sanctioned by any state or federal law.

The last clause of the 14th Amendment gives Congress "power to enforce, by appropriate legislation," the provisions of the entire amendment. Clearly then, Congress has authority -- even the responsibility -- to pronounce when life begins. (This critically important matter was deliberately skirted by the majority in the Roe v. Wade decision.)

Nor would such a determination by Congress require any further constitutional amendment. All that would be needed is majority support in both the House and the Senate with no need for presidential acquiescence and no opportunity for a presidential veto. If the Supreme Court were later to declare this congressional action to be unconstitutional, then Congress could rightly act according to Article III, Section 2 of the Constitution to limit the Court's jurisdiction over abortion-related matters.

On January 22, 1996, Representative Robert Dornan (R-CA) introduced H.R. 1625, which he labels "The Right to Life Act." The purpose of the measure is to have Congress define that life begins at conception. As Dornan states, "H.R. 1625 would effectively overturn Roe by prohibiting any state or federal law that denies the personhood of the unborn."

A woman certainly has rights with regard to her own body. But once conception occurs, her responsibility now extends to protecting the baby developing within her. Happily, here in America no one has ever been forced by law to abort a child. But the increasingly callous attitude about the sanctity of all innocent life, combined with the increasing ascendancy of government power, could well invite such a horror here.

If a person can be killed because he or she is too young or too inconvenient, then another person can be killed because he or she is too old or too dependent --or maybe too politically undesirable. Abortion gives the power of life or death to individuals and governments -- an extremely dangerous concession. Preserving and improving life should be the concern, not the opposite.


THE NEW AMERICAN / - April 15, 1996

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