Fourteenth Amendment Section I- Due Process Clause -"...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."
One of the most controversial Constitutional decisions and questions that has continually perplexed this nation since its first introduction is the Supreme Court's Decision in 1973 on abortion in the famous case of Roe vs. Wade.
In this landmark case the nine Justices of the Supreme Court using the Due Process Clause stating a right to privacy ruled that all state and federal laws outlawing abortion were unconstitutional and therefore since that time because of this decision abortion has been considered, "the law of the land."
First let me state for the record that as a conservative I am opposed to abortion but in writing this article my views on the matter are not what will be expressed nor will this be an article that argues the merits pro or con of abortion.
The sole purpose of this series is to look at the Constitution from an original intent view point and from the fact that the Framers in their collective wisdom in establishing the Constitution provided laws to govern this nation and provisions within the Constitution to adapt through the amendment process this foundation to societal changes.
Additionally through this in depth look at our Constitution this series is attempting to reveal misconceptions in what is believed by many to be Constitutional fact and what is not.The misconception from a strict Constitutional stand point that abortion is legal and the law of the land is arguably one of the most misunderstood and has created the greatest fire storm in our nations history.
Let me explain why. Regardless of ones view point concerning abortion the case of Roe vs. Wade which outlawed all state and federal laws banning abortion, while eliminating laws that prevented abortion DID NOT create any law legalizing abortion either.The great misconception concerning a woman's, "Constitutional right, " to an abortion has created the idea that it is also a legislated fact that abortion is because of the Supreme Court decision, "law." Which is not the case at all.
Under the first three Articles of the Constitution the Framers of the Constitution established a well defined Separation of Powers between the three branches of government, The Executive, (the President), The Legislative, (The Congress), and the Judicial, ( Federal Courts). Additionally Section IV of Article IV also allows for the institution of this, "Republican Form of Government," (referring to our being a Constitutional Republic and not the party by the same name), for every State that is admitted to this Union.
In order for any matter to become law in The United States it first must be established and passed by the duly elected Legislative officers of the government. In the case of the Federal government this is the sole duty of the Congress. On the State level this duty falls to the individual state legislatures.
While many states have established legislation concerning abortion since 1973 and the Roe vs Wade decision on the federal level only a ban on Partial Birth Abortion currently exists and is being challenged waiting hearings by the Supreme Court. Also FACE, (Freedom of Access to Clinic Entrances Act), which provides for criminal and civil action against obstruction of entrance to an abortion clinic. This to is facing a First Amendment challenge before the Supreme Court. Other legislative initiatives that are pending cover a provision for elimination of federal funds for abortion.
The misconception that Abortion is, "the law of the land, " has thus created ongoing argument between Pro - Life and Abortion activists, continual debate within Congress with much discussion as to whether Roe vs. Wade should or should not be over turned but with the exception of the above mentioned duly voted on and passed federal legislative decisions there are no federal laws establishing whether abortion is legal or illegal therefore there is NO law stating that abortion is, "the law of the land." Only a Supreme Court decision on a particular case that over turned all existing anti-abortion laws that were in existence at the time of the decision in 1973.
While the debate concerning abortion and the protests for or against will continue in the nation the fact is the from a strict Constitutional stand point abortion in neither legal or illegal in this country because there have been no laws passed other than those already mention that legislate the status of this much argued and controversial subject.
Lawmakers in Congress realize this but because of the great controversy that abortion creates nationwide have as a whole refuse to address this subject from the stand point of the law as Congress Constitutionally establishes law thus allowing the misconception from a Constitutional stand point that abortion is, "the law of the land."
Ken Taylor
