Neither the 9th Nor the 14th

by Don Fredrick, The Complete Obama Timeline, ©2022

(May 4, 2022) — Abortion advocates rely on the 9th and 14th Amendments to the U.S. Constitution to defend the life-snuffing practice. The 9th Amendment states:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

That statement emphasizes that citizens have rights that are not specifically addressed in the Constitution. But that does not mean citizens have the right to do anything that is not mentioned in the Constitution. Burglary is not mentioned in the document, but that does not mean there is a right to rob a bank. Abortion is also not mentioned in the document.

Abortion advocates tend to believe the federal government is the be-all and end-all, and that the individual states are nothing but an inconvenience. Many on the political left are apparently unable to even understand the meaning of the nation’s name: The United States of America. This nation is a collection of 50 separate states, each of which has its own laws and regulations. The Founding Fathers never intended for the federal government to become as powerful as it has. It was only supposed to perform the functions that could not be performed by the states or the citizens. It was not meant to be a tyrannical power, whose abuses could not be prevented by the voters. (What the U.S. government has become is what the European Union wanted to become: an all-powerful body that could control European nations—just as the bureaucrats in Washington, D.C. try to control the 50 states. To a great extent the EU has succeeded in expanding and abusing its power.)

Roe v. Wade was an abomination of a decision, and even leftist legal scholars accept that evaluation. The decision was based partly on the 9th Amendment and on a convoluted argument that Section 1 of the 14th Amendment included a “right to privacy” that protected one’s decision to kill an unborn child. Section 1 reads:

“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.”

The purpose of the first sentence in the section was to declare that freed slaves were to be considered citizens of the United States. The words “and subject to the jurisdiction thereof” was for the purpose of excluding citizenship to members of Indian tribes and children born to foreigners not permanently residing in the U.S. (such as diplomats and tourists).

The rest of Section 1 is what the pro-abortion Justices used to claim a “right to privacy” protected abortion. That is nonsense, as most reasoned legal minds now recognize. No state should “abridge the privileges or immunities of citizens.” Nor should 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.” But that text does not suggest that abortion is a right specifically protected by the Constitution any more than is robbing a bank, being issued a driver’s license, or being provided with a free college education. Recognizing that the federal government has no right to interfere with most citizen actions does not mean the states do not have a right to regulate or prohibit them.

The 14th Amendment means that the citizens generally have the right to do as they please in the privacy of their own homes, public places, and places of businesses without the interference of the federal government. It also means that no one, including freed slaves, should be deprived of life, liberty, or property without due process of law. (Keep in mind that the point of the 14th Amendment was to protect the rights of former slaves, not to ensure that a woman who preferred a daughter could abort a son.)

Neither the 9th nor the 14th Amendment mean that citizens can do anything they want. It means, for example, that two men can have a sexual relationship, but it does not mean a man has the “right to privacy” if their sex is not consensual. The logical assumption is that individuals have a right to interact without interference, provided those actions are voluntary and consensual. No one has a “right” to commit murder simply because the act is performed in the “privacy” of his home.

Allowing the states to adopt rules regarding abortions does not mean gay marriage will be outlawed, because gay marriage is a consensual act between two parties. In an abortion, aside from the pregnant woman (or pregnant man, for those who insist on being “woke”) and the abortionist, there is a third party (the baby) who is not able to consent to the act. That is what makes the “right to privacy” argument inoperable. Justice Samuel Alito, in the leaked draft of his possible majority opinion, specifically addressed that. Hysterical leftists are outrageously claiming that gay marriage, interracial marriage, and even birth control will be outlawed if Roe v. Wade is reversed. Joe Biden has absurdly warned that Republicans could pass laws preventing “LGBTQ” children from attending public schools. These irrational claims are intended to raise campaign funds and drive more Democrat voters to the polls in November—voters who are so angered by skyrocketing inflation, rising crime, dangerous border insecurity, and preposterous anti-virus mandates that they will either vote Republican or stay home on election day.

A reversal of Roe will not mean a federal ban on anything. It merely means that the issue rightfully belongs at the state level because it is not a federal issue. That argument is supported by the Tenth Amendment—the Amendment that Democrat and Republican legislators alike have been ignoring for decades. The Tenth Amendment reads:

“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.”

That is not a complicated statement. If the Constitution does not specifically designate a power as belonging to the federal government, that power belongs to the states, or to the people if the state does not address the issue. As an example, the Tenth Amendment is the argument for eliminating the federal Department of Education. Nothing in the Constitution gave the government the power or authority to establish that expensive and counterproductive bureaucracy (which has caused the student loan fiasco). The department was unconstitutional from day one and should be abolished. (Federally owned student loans should not be “forgiven.” They should be sold to the highest bidders. That would result in a monumental amount of revenue that could be used to reduce the deficit, and the students, rather than the taxpayers, would be required to make their loan payments to whoever bought the loans.)

Constitutionally speaking, abortion should not be a federal issue. Why, then, did Roe v. Wade even make its way to the Supreme Court in 1973? The Justices could have refused to even hear the case and let the challenged state regulation stand. But the legislators knew they could not pass laws fully legalizing abortion because there was insufficient voter support. For many members of Congress, to vote in favor of reduced abortion restrictions would mean losing the next election. The issue was therefore pushed into the laps of the Supreme Court Justices—who do not have reelection concerns and who have, for considerable (pre-Trump) time, leaned to the political left. In essence, Congress had the Court do its dirty work.

That is why the Democrats are so upset by the leaked draft of the Supreme Court’s majority opinion. If the politicians no longer have the Court providing them with political cover, they could be forced to vote on the issue on the floor of the House and the Senate. Some Democrats are calling for an end to the Senate filibuster because they know they do not have 60 votes to approve federal legislation making unrestricted abortion the law of the land. The reality is that they probably do not have 50 votes either—especially in an election year.

Although polls suggest a majority of Americans do not want to outlaw abortion entirely, about 80 percent are adamantly opposed to late-term abortions. It is one thing for a politician to say, “Women have the right to an abortion, but it should be safe, legal, and rare,” and quite another to say, “It should be legal for a healthy woman to abort a healthy baby in the ninth month of pregnancy.” Most Americans are justifiably repulsed by the thought of aborting on May 4 a baby whose due date is May 5, even if the absurdly named Planned Parenthood, Senator Elizabeth Warren (D-MA), and Congresswoman Alexandria Ocasio Cortez (D-NY) and her “squad” find that form of “birth control” perfectly acceptable.

The politicians know that the majority of voters oppose unrestricted abortions. That is why they draft abortion legislation but do their best to not let anyone know what is in that legislation. This video provides an example of such evasiveness:

https://gab.com/AmericanWoman_MAGATrumpUSA45/posts/108239327895626761

It is worth noting that when Obama served in the Illinois State Senate, he was the only member to vote against legislation requiring that medical care be given to a baby who “inadvertently” survives an abortion. He supported leaving the baby to die in a cold, stainless steel pan, even though it was alive and healthy and could be adopted. That is the evil the pro-abortion crowd wants to hide. They have done so for 49 years by letting the Supreme Court do the dirty work they want to avoid.

Despite the apparent upcoming ruling, abortion is not going to be made illegal in all 50 states. California, Illinois, New York, and 15 or so other states will continue to let babies be killed. Some states will prohibit only late-term abortions. Some will use heartbeat detection as the cut-off. A few might ban abortions almost entirely. But the killing will continue. (Amazon has already announced it will pay up to $4,000 for an employee to travel to another state to abort her baby.)

Abortion rules will vary from state-to-state, just as tax rates, gambling rules, and death penalty laws vary from state to state. If you want your state’s law changed, you are free to lobby state lawmakers to do so. But you will not be able to rely on an imaginary “right” in the U.S. Constitution to protect the politicians from having to cast votes. If abortion is supported by as many Americans as the Democrat politicians and media leftists claim, the states should have no problem enacting legislation that protects the practice.

Following the Tenth Amendment and leaving regulations to each of the 50 states, rather than the federal government, is hardly the end of the world for those who support abortion. In fact, it moves the decision making closer to the American people. A citizen’s ability to influence state lawmakers is far greater than his or her ability to influence federal lawmakers. Have pro-abortion Americans no confidence in the ability of their fellow citizens to lobby their state legislatures? Are their friends and neighbors unable to write letters? Would the abortion supporters rather trust the Supreme Court Justices (who cannot be removed from their positions) to give them what they demand than their local lawmakers (who can be voted out of office)? The Supreme Court is apparently going to leave abortion regulation to the states. The U.S. will end up with 50 different statutes in those 50 states. Wouldn’t the Democrats rather have 50 state rules than a possible Supreme Court ban on all abortions? Wouldn’t they rather have the ability to travel to another state to have an abortion than another country?

It is sad that it has taken 49 years for sanity and the law to be applied to the issue. It is unfortunate that uninformed heads are exploding across the nation in response to the news that there will be more restrictions on abortions. But those exploding heads can be tolerated far more than the crushed skulls of aborted babies.