Posted by
Andrew on Tuesday, November 06, 2007 8:03:37 AM
Unless I'm mistaken, historically and Constitutionally, the several States, under their police powers, have been free to define what constitutes "death" and "murder". (Whether or not an "innocent life" is involved has not been sufficient to raise this matter to being a federal, Constitutional concern, unless that "innocent life" was a federal employee.)
Before Roe v. Wade the several States also had the traditional, State police power to regulate abortion.
Given that there appears clearly to be a division of belief between citizens with regard to whether abortion results in "death" and/or "murder", it seems only sensible to allow the individual States to make this determination through their democratic and legislative processes, rather than making "a federal issue" out of something that has, since our founding (pre-Roe v. Wade), been a State's right.
While I must admit that the argument of an implied "right to privacy", which allows the United States Supreme Court to preempt the legislation of sovereign States, kind of makes my head spin, I believe the explicit provisions of the Ninth and Tenth Amendments ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" and "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", respectively), as well as the preamble to the Bill of Rights (The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added...") might help shed additional light on this matter.
The "United States" (i.e., the federal government) does not have the power, Constitutionally, to determine what is "death" or "murder" unless a federal employee is involved. Historically and Constitutionally, these have been powers reserved to the several States. On the other hand, if there is a "right to privacy" retained by or reserved to the people (and discovered by the Roe v. Wade court), then that right would supersede legislative attempts to infringe upon it. At least, and certainly, at the federal level. (The "Bill of Rights" was addressed to the "Congress" of the United States, which shall "make no law...", although later Supreme Court decisions extended the First Amendment's provisions to the States through incorporation via the provisions of the Fourteenth Amendment.)
Thus, to me anyway, there appears to be a clear conflict here between application of unenumerated rights reserved to or retained by the people, and the historical and Constitutional police powers exercised by the States. (That an unenumerated "right" to privacy which prohibits state regulation of abortion had never been in evidence prior to Roe v. Wade is an argument which a rational Supreme Court would have given more consideration.) Given the reservation of public health and police powers to the States, historically, Constitutionally, and clearly by numerous decisions of the United States Supreme Court, the best resolution of this conflict would seem to be that "abortion" would be a matter best left to determination by democratic and legislative processes at the State level. (And kudos to Fred Thompson for saying so...just as George W. Bush did during his campaign in 2000.)
If someone has a "moral" problem with allowing States this right, then they might consider exercising their right of free speech under the First Amendment to change the beliefs of people who would vote to allow abortion. Personally, in case of a "tie" (between State sovereignty and federal application of a non-enumerated "right"), I prefer to come down on the side of State sovereignty. Particularly when it allows voters to decide a contentious issue.