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A Fourteenth Amendment "right" to abortion?

By Scott Tibbs, March 24, 2014

I sometimes wonder if there is hidden text in the Constitution of these United States that is written in invisible ink, or if there were portions of the Constitution that have never been made available to anyone other than the judicial branch.

That would be a charitable interpretation of a recent decision declaring that restrictions on abortion in Arkansas "impermissibly infringes a woman's Fourteenth Amendment right to elect to terminate a pregnancy before viability." The uncharitable interpretation would be that the judge was abusing her authority to legislate from the bench.

So let's examine the text of the Fourteenth Amendment. The relevant portion of the text establishes:

  • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
  • 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.

You will notice that nowhere in the four provisions quoted above is the "right" to have a child killed in the womb established. The "due process" clause has nothing to do with abortion; it merely requires that a process be followed before the state can act against someone. If anything, the equal protection clause would make legalized abortion unconstitutional by denying unborn persons equal protection under murder laws.

Politically and legally, the Arkansas ban was a risk because it went farther than the bans on abortion at twenty weeks that have been very controversial - though they should not have been controversial at all. I doubt that pro-life legislators in Arkansas had any real expectation that the ban would not be struck down, but that it would instead be another opportunity to legally chip away at Roe v. Wade.

But what it does do is allow us to re-examine the flawed legal argument used to throw out bans on abortion in all fifty states. Much like professional wrestling matches, the outcome of Roe v. Wade was predetermined. The justices twisted and shaped the text of the Constitution to make it fit the result they wanted, instead of allowing the text of the Constitution to determine the legality of state bans and restrictions on abortion. Furthermore, because of the court's absurd obsession with "precedent," the decision was allowed to stand when an intellectually honest reading of the Constitution would see it overturned.

The problem, ultimately, is that the Supreme Court has been packed with "justices" who are rebels against the rule of law. This is why every major decision these days is seen through a political lens instead of a legal lens, establishing this nation as a judicial oligarchy instead of a constitutional republic. That is a much bigger problem for our country in the long run than one terrible decision from forty-one years ago.