Posted on June 3, 2021




Libs would regret codifying Roe v. Wade


Daniel Clark



Regardless of whether or not the Supreme Court's decision on a Mississippi abortion law results in the overturning of Roe v. Wade, President Biden has stated his goal of codifying that 1973 ruling into law. To most liberal Democrats, this must sound like an exciting new concept. Want to create "the law of the land"? Try actually passing a bill through the federal legislature and having the president sign it, instead of relying on a handful of unelected, unaccountable judges to make things up. Just don't spoil it for them by telling them this is the exact process our dastardly founding fathers prescribed in the Constitution. Let them think it's the recent result of a "reimagining" of law, by college professors, community organizers, and Major League Baseball.

It's highly unlikely that Biden or anyone else who's talking about codifying Roe has ever actually read that decision, or else the difficulty in transferring its logically and constitutionally incomprehensible language into a piece of legislation would become immediately apparent. One of the perks of unaccountability is that your reasons for doing things don't need to make sense. Justice Harry Blackmun could make the mindboggling assertion that, "We need not resolve the difficult question of when life begins," even as he surreptitiously gave our nation's endorsement to the wanton slaughter of the human unborn, with a force equivalent to that of actual law. Once his opinion was published, he and his colleagues no longer had to answer for it. That same outrageous statement, presented as part of a piece of legislation, would have to be debated.

In Roe, the Court declared abortion to be a "fundamental constitutional right," even though if you look for it in the Constitution, you won't find it. There is no language in that document that says anything that might be even loosely interpreted to mean abortion must be legal. What Blackmun argued instead was that the First, Fourth, Fifth, Ninth and Fourteenth Amendments have collectively secreted a "penumbra of liberty," in which he detected a generalized "right to privacy" that somehow encompasses a right to abortion, as if the killing of a human being could reasonably be characterized as a private matter.

The seven justices who were responsible for Roe have never had to defend it. They just lit their rhetorical stink bomb and ran away. Congressional Democrats wouldn't have that luxury. They'd have to stand up on the House and Senate floors, in front of the cameras, during the most scrutinized legislative debates in American history, and repeat Justice Blackmun's baseless and often contradictory assertions. What's more, they'd be putting themselves in the position of having to answer questions like these:

* A "penumbra" is a partially-lighted area. If a "fundamental constitutional right" to abortion exists, why must you go skulking about in the shadows to find it?

* If the First, Fourth, Fifth, Ninth and Fourteenth Amendments have collectively belched forth a right to abortion, shouldn't the language still be there, such that you can site which clauses from those various amendments add up to mean what you say they do?

* Do you realize that there can literally be no such thing as a Ninth Amendment right? If you disagree, could you please explain exactly what a Ninth Amendment right is?

* The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." All this means is that the absence of any mention of a right from the Constitution does not necessarily mean it doesn't exist. Are you arguing the inverse of this, that a fundamental constitutional right must exist for the very reason that it is not mentioned in the constitution? If so, then how can you tell when an unenumerated right does not exist?

* The Tenth Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Considering this, should you not have taken the lack of enumeration of a right to abortion to mean that the Texas statute at issue in Roe v. Wade should have been upheld? In what way does the Ninth Amendment justify the Court's nullification of that duly passed state law?

* Do you know that Roe v. Wade explicitly invites its own overturning? After callously dismissing the need to determine when life begins, Blackmun conceded, "If this suggestion of personhood is established ... the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Are you prepared to publicly conclude that the human unborn are not people, even as the opposition is presenting irrefutable evidence to the contrary? Even if you do this, there will eventually be a pro-life majority in Congress that will pass a law establishing the personhood of the unborn, thereby causing your codification of Roe to forbid abortion nationwide. On what basis could you then undo that development in the future?

* Are you aware that this has arguably already been done? The Unborn Victims of Violence Act, signed in 2004 by President George W. Bush, defines an "unborn child" as "a member of the species homo sapiens, at any stage of development, who is carried in the womb." Are you willing to stand before America and declare that a member of the human species is not necessarily a person, even if it is an unborn child?

* If the Supreme Court overturns Roe v. Wade, it will almost certainly cop out by referring the issue to the states, so that abortion would remain legal in certain parts of the country. If, on the other hand, you succeed in codifying Roe, and either the UVVA or some future law establishes the personhood of the unborn, the result will be that abortion is prohibited in all fifty states. For what reason, other than subliminal guilt, might you risk such an outcome?

Are abortion advocates really going to bring this moment of reckoning upon themselves? Here's hoping they do, but it's doubtful. As we can see, there are very sound reasons why they didn't allow such a debate to take place 48 years ago.



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