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Op-Ed: Dobbs Doesn't Give States Free Rein on Abortion - They Must Abide by the Constitution and Protect Life

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Following the overturning of Roe v. Wade in the Supreme Court’s Dobbs decision last June, California, Vermont and Michigan have passed ballot measures to enshrine “abortion rights” in their state Constitutions.

But Dobbs was not a carte blanche for the states to make any laws they like on abortion. No way! Supreme Court scrutiny is still required.

The states were given responsibility — not absolute permissiveness. Big difference.

Dependency does not confer ownership or killing rights.

State constitutions must still align with the U.S. Constitution. Indeed, state, federal or presidential attempts to codify in law any alleged right to abortion must always be disallowed by the Supreme Court as unconstitutional.

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In ensuring all legislation is consistent with the Constitution, the Supreme Court retains the same duty as always to monitor state and federal conformity to the Founders’ “no property in man” principle. Neither President Joe Biden nor Congress nor the states have any authority to award to pregnant women ownership and killing rights over their unborn children.

Indeed, the Supreme Court in Yick Wo v. Hopkins reasoned correctly: “For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”

That the right to life of a small daughter or son in her or his mother’s womb should be held at the mere will of another is indeed the essence of slavery itself.

Oath to preserve, protect and defend the Constitution

Should states outlaw abortion?

Any law protecting the utterly defenseless unborn child from deliberate extermination is not an arbitrary or abusive exercise of state power. It is an absolutely necessary exercise of a state’s duty to protect the powerless from lethal violence.

State power becomes abusive when it introduces laws that legalize and facilitate the killing of innocents in their mothers’ wombs as though they are their mothers’ private property.

Under the 13th Amendment, Congress is awarded the solemn duty to force the states to abide by the original constitutional principle that forbids ownership of human beings. It may not abdicate this legislative duty to ensure that no human being is mistreated as the disposable property of another.

In the Dobbs ruling, the court asserted, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”

Indeed, the Constitution specifically requires the people and their elected representatives to regulate our propensity for selfishness: “We the People of the United States” are to secure to “our Posterity” the same blessings of liberty as to ourselves. Common sense affirms that pre-born children are already members of our posterity.

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State abortion laws must be consistent with the Founders’ original recognition that the infant “en ventre sa mere” or in the mother’s womb is to be protected — the common law understanding of the right to life as taught by Sir William Blackstone at that time.

For it should be remembered that state legislators are all bound by oath to enforce the law and preserve, protect and defend the Constitution. They may not nullify the constitutional protections owed to the unborn, the newest members of our posterity.

What justifies killing the innocent?

Why then, in some states, are these little children, while in the natural protection of temporary residence in their mothers’ wombs, being targeted “lawfully” for lethal violence by their mothers’ abortionists?

Why is this temporary residence, through no fault of the child’s own, misrepresented as constituting a capital offense? Of what terrible crime are these little ones guilty? Of being unwanted? Of being persona non grata? Of breaking into their mothers’ wombs without permission?

Are they not given a death sentence, judged by their mothers and executed by their mothers’ abortionists, for being in the wrong place at the wrong time?

What makes any deliberate killing instigated by a private individual “lawful”?

Historically, two common law principles — necessity and proportionality — have governed any self-defense justification for killing another human being. These principles still require that, in the use of lethal force against any human being,

  • the danger to be averted must be clear, lethal and imminent and
  • there must be absolutely no other way to avert that danger.

In general, neither of these principles is genuinely operative in the hundreds of thousands of abortions performed routinely and indiscriminately in pro-abortion states today.

No adequate justification for choosing to kill the unborn

Regrettably, for the 50 years since Roe, abortion violence was made to appear normal in women’s lives.

But the truth is stark. There can be no adequate legal justification for deadly physical aggression against these undefended victims of abortion. As Judge James Ho discerned recently, “nothing in the text or original understanding of the Constitution establishes a right to an abortion.”

Without due process and equal protection of the law, no state has the authority to deprive any human being of life or liberty. The 14th Amendment couldn’t be clearer on this: “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.”

No state may authorize the killing of any human being at any age as the mere “private choice” of another.

Way back in 1974, before a U.S. Senate subcommittee on the constitutional amendments, succinct reasoning was put forward for every human being to be accorded right-to-life protection at every stage of life: “Death may occur at age one or at any other chronological point, or it may occur prior to birth. It is the same human being who dies, no matter when.”

From the newest to the oldest, every human being has under the Constitution the same right and the same freedom to go on living. Every human being, big or small, must be protected equally and by due process of the law from deliberate lethal violence.

No legalization of abortion “choice” can meet that principled constitutional requirement.

This article appeared originally on The Western Journal.

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