Forty Years On: The States and Roe v. Wade

Forty years ago, Roe v. Wade became law of the land.

Some people would like you to think that prior to Roe, back alley abortions were all you could have if you were pregnant. This is not so. Abortions were allowed in multiple states for rape, incest or when the pregnancy would prove harmful to the mother. Hawaii, New York, Washington and Alaska would allow abortions at the mother’s request. In short, prior to 22 January 1973, abortion was legal under certain circumstances in 20 states. So, the Tenth Amendment was working perfectly in allowing the states and their populations to determine the legality of abortions, since this power was not specifically enumerated in the Constitution.

Until Roe v. Wade established that a right to privacy existed under the Fourteenth Amendment, which says (in part, because this is one of the lengthier amendments) that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.”

It’s the bold text that most pro-life Americans have trouble with. When does life begin? Is it at conception? Is it at first heartbeat (18 days post-conception)? Is it at viability (24 weeks)? If you believe life begins at conception, then an abortion inherently violates the unborn baby’s Fourteenth Amendment rights. Same goes if you believe that life begins at the first heartbeat, since most women don’t discover they’re pregnant until after the baby’s heart begins beating.

As far as viability, the Supreme Court defined it in the Roe v. Wade decision as, “potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Since the decision, medical technology has advanced possible viability to 21 weeks. The Supreme Court declined to weigh in on when life began, deciding to totally disregard this issue, because English and common law had never before recognized the unborn.

However, the Supreme Court is hardly infallible (i.e. Dred Scott v. Sanford, Pace v. Alabama, or Plessy v. Ferguson). If we accept that the Supreme Court is fallible, then they overstepped their boundaries in asserting that they could determine that it didn’t matter when life began because common law didn’t recognize unborn rights. Of course there was no precedent. At no other time in history had women attempted to openly terminate pregnancies. It’s unimaginable that William Blackstone would have spelled it out in his Commentaries.

But, someone will inevitably ask, if Roe v. Wade is overturned, what do we do about pregnancies resulting from rape or incest, or a pregnancy that would harm the mother? Roe v. Wade simply allowed the federal government to say abortion was legal. If it was overturned, the states (under the Tenth Amendment) would revert to being the authorities. Additionally, rape and incest account for such a miniscule portion of abortions that allowing these two issues to be raised is almost a travesty. Certainly, rape and incest are tragedies. Rape and incest victims deserve compassion and understanding, and I can imagine no state that would try to insist that a rape or incest victim be forced to carry a pregnancy to term. That being said, we can’t legislate bad law based on what happens to less than 1.5% of cases.

Legalized abortion on demand is exploited far more often as a backup form of birth control than as a solution to rape or incest — or even to preserve the life of a mother — than anyone wants to admit. Americans have been party to genocide. There are American families adopting babies from overseas right now because there are not American babies to go to these families. We are a nation that declared our independence on the principle that, “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…”. Without a right to life, all other rights become superfluous. It’s time to recognize that a country that cannot recognize that even the smallest lives have the right to life cannot take the moral high ground in any other arena without risking hypocrisy.