Legal and constitutional aspects of abortion

Abortion Is Illegal Legally and Constitutionally

Supreme Court tackled one of the most ground-breaking cases sent up its way on certiorari, and it got it wrong. In 1974, the decision handed down in Roe v. Wade set an incorrect - and indeed illegal - precedent, both from a legal and constitutional perspective.

The first hints of this error come on the minority dissent penned by Justice Rehnquist, now the sitting Chief Justice on the court. Rehnquist wrote, "Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court."

In other words, there is no reason for the case to be decided by the Supreme Court because the Texas statute quite clearly bars the right to abortion in the particular case at hand. One of the Supreme Court's responsibilities is to decide cases when there is a federal question that is not adequately handled by state law, and in this case, state law does independently dispose of the issue. That is why the Supreme Court erred. The Supreme Court is limited in that it cannot decide a case without case or controversy, or one that is independently decided on state grounds.

This concept is laid out in Federalist Paper #78, in which the writer, Alexander Hamilton, was careful to limit the powers of jurisdiction of the courts. However, he did write that he believed that the court which had the power to declare an act void have a superior power than the body whose act was being declared void: Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable."

In this case, according to Alexander Hamilton, the court would have had the right to interfere and it would have had the superior power to declare the Texas statue void on its face.

However, Hamilton aside, our natural law and natural rights also prohibit first trimester abortion. Derived from Locke, Natural law and natural rights follow from the nature of man and the world. For instance, we have the right to defend ourselves and our property, because of our nature, because of the kind of creatures that we are. True law derives from this right, not from the arbitrary power of the omnipotent state.

Natural law has an objective, extrinsic existence. The ability to make moral judgment - or in other words, the capacity to know good and evil -- has immediate evolutionary benefits: just as the capacity to perceive three dimensionally tells one when one is standing on the edge of a precipice, so the capacity to know good and evil tells one if one's companions are liable to slit one throat. In this same way, natural law enthusiasts declare, we learned how to throw rocks: It came naturally to us.

Under natural law theories, abortion is tantamount to murder. How can we blithely kill a living, breathing organism? It makes as much sense as Pol Pot's genocide: Natural law simply dictates that it is wrong. No amount of legal or constitutional justification (although we have already established that these theories do not hold water either) can justify breaking the purely logical and second-nature tenets of natural law. Just as we breathe, we cannot kill a fetus.