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Tom Sheppard
10/21/2020
Most of us hear "Roe v Wade" and we translate that into "Pro-Abortion and Anti-Abortion." Unfortunately, we are missing the mark.
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Tom Sheppard is a business consultant and coach to small business owners and individuals. He is a recognized author with dozens of titles in business and fiction to his credit. One of his endeavors is to help those who want to see their own book in print. He does this through his trademarked Book Whispering Process (TM).
The author is not an official spokesperson for any organization or person mentioned herein.
(c) Copyright 2020 A+ Results LLC. All Rights Reserved.
Your comments are welcome... Please observe some ground rules. No profanity, vulgarity, or personal attacks. Profanity, vulgarity and personal attacks not only betray a lack of vocabulary and imagination, they also are the hallmarks of bigotry, and bigotry is the hallmark of someone who is fundamentally insecure in their views. Facts are always welcome.
Most people know that Roe v Wade is the case where SCOTUS determined that women have a right to abortion on demand. This 'right' can be phrased as reproductive rights, or the right to control her own body, or abortion rights.
When most of us hear about Roe v Wade, and whether or not someone supports it, our minds are focused on the topic of abortion. However, the real importance of Roe v Wade is not about abortion.
When politicians focus on the potential of overturning Roe v Wade, they are not actually worried about abortion.
The biggest issue embedded in Roe v Wade is not abortion. The biggest issue is whether or not the judiciary branch is allowed to violate the Constitutional separation of powers and create laws in addition to interpreting the laws.
As divisive and important as is the issue of abortion it is being used to mask this much bigger problem.
Abortion and Inalienable Constitutional Rights
Regardless of the moral issues of abortion, fundamentally it is a medical procedure. It it irrefutable that the Constitution is silent of medical issues. It neither grants, nor denies any medical procedure. In short, our medical care is not one of our inalienable rights.
Similarly, the Constitution is silent on matters of financial security. While we have the right to pursue life, liberty, and the pursuit of happiness (as noted in The Declaration of Independence) nowhere in the Declaration of Independence, the US Constitution, or the Bill of Rights is there any acknowledgement that financial security is a basic right.
Separation of Powers
The biggest issue embedded in Roe v Wade is the separation of powers.
In a monarchy the king or queen hold all three powers of government in themselves. The monarch writes the laws, enforces the laws, and interprets (judges) whether or not the laws are being applied correctly.
The separation of these powers out of the hands of monarchs are the greatest accomplishments of Western Civilization.
The importance of the Magna Charta is that King John was forced to give up both judicial power and legislative power. The right to trial by a jury of peers was a direct removal of judicial power out of the hands of the King. The perpetual establishment of Parliament was a direct removal of legislative power out of the hands of the King.
When the Founders wrote the Constitution, they built a government that exercised all three of these governmental powers in ways that allowed each branch of government to serve as a check on the power of the other branches.
In recent years we have seen substantial erosion of the separation of powers in several ways.
The Executive Branch Has Legislated
Executive Orders and regulations have the power of legislation. When they are promulgated as clarification of implementation of legislation that may be proper. However, in recent years we have seen Executive Orders from Presidents of both parties enacted in the absence of legislation. The so-called Dreamers Act of DACA is one such order which, strangely, SCOTUS sustained as lawful when a subsequent President attempted to remove it through an Executive Order.
The Legislative Branch Has Executed
Recent years have seen the Legislative Branch enact laws to take over certain powers of the Executive by curtailing the Constitutional powers of the Executive relative to dealing with other nations.
The Judicial Branch Has Legislated
Here is the crux of this discussion. When the Judicial Branch legislates, there is no effective check on their power by either the Executive or the Legislative except through defiance, censure, or attempts at counter-legislation.
They Key Question in Abortion
The pivotal issue of abortion revolves around the rights of the unborn. The rights of the unborn hinge, in turn, on the question of when does the unborn become a "person." Once the point of personhood is reached, then all the protections of rights by the State come into play and the rights of the mother versus the rights of the child must be mediated. Today, many believe personhood is established at conception. Others argue it happens only at birth. Still others take stances in between those two extremes.
This question of personhood was the key issue for abortion debates in states across the US until SCOTUS codified it at the start of the third trimester, based primarily on the notion that from that point forward the unborn might survive outside the womb, albeit with assistance. This survival concept is referred to as viability.
"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn.Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. [Footnote 1] While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. [Footnote 3-2] Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and "has remained substantially unchanged to the present time." Ante at 119.There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."
When SCOTUS decided Roe v Wade they established a right which had been rejected as such by the Founders. From the previous quote, the research of Justice Rehnquist revealed that the Founders reasonably knew about laws on the books controlling abortion, yet they did nothing to establish it as a legal right. I will grant here that at this point in time the rights of women were largely neglected. They had no vote and their property rights were often violated. So, it is arguable that, in this instance, the right to abortion was being ignored.
If a woman's right to abortion were the only issue with Roe v Wade, I would happily leave it there and focus this discussion on the crux of that matter, i.e., when does the right of a woman for an abortion conflict with the right of the child within her to not be deprived of life without due process? That is the real question behind the question of viability and personhood.
To be blunt, science cannot answer the question of personhood. Science is unable to accurately determine when a 'fetus' becomes a person. Religion too has difficulty in this arena. Short of God granting a direct and incontrovertible revelation detailing when the spirit becomes a permanent tenant in the body there is no way for us to know when the transformation occurs from mere flesh and bone to a living soul.
The debate over personhood is critical because personhood is necessary for legal acknowledgement and protection of rights. In other words, the right of a woman to end a pregnancy infringes on the right of a child to life at the moment the child becomes a person. If that personhood doesn't occur until birth, or if it occurs at conception, then the rights of the woman must be balanced against the rights of the person being born.
Some of the research by the majority opinion on Roe v Wade makes it clear that religions too, including Christianity and Judaism have differed in their views over time. Traditionally, they focused on the moment of birth, or when the baby "quickens" and begins to actively move and respond to external stimuli while still within the womb. The focus on personhood at conception is a relatively recent standard for religion.
Because the debate over personhood is so critical (and essentially unknowable) it becomes a matter of conscience and is appropriately left to the People to decide as they debate, implement, and amend laws intended to protect the right to life of an unborn child within their various states, or even at a national level through the Congress of the United States.
They can change these laws as their understanding changes. They can elect or throw out representatives who support or oppose their views, and thus the rights of women and unborn children can be dictated by the collective conscience of the People.
When SCOTUS ruled in Roe v Wade, they took this debate out of the hands of the People. Rather than letting the People use the legal means available to them through our Constitution, by judicial fiat SCOTUS wrote law to establish a legal thresholds for abortion across all the States at once.
In Roe v Wade SCOTUS ruled that during the first trimester of pregnancy it can be terminated at the will of the woman without any prohibition. During the second trimester some concerns had to be addressed, and during the third trimester the only justification was the choice between the life of the mother and the life of the unborn.
Justice Rehnquist's dissent puts the point on this issue. "The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment." [my emphasis]
To be clear, the real reason why Roe v Wade is important to liberals is not because of abortion. Liberals want Roe v Wade to be considered inviolate because it establishes a precedent of judicial legislation.
Two Steps to Monarchy
The United States of America rebelled against Great Britain because they felt that their rights were being trampled upon. When the Founders crafted the Constitution and the Bill of Rights it was to establish a government which would protect the rights of the People from injustice by their government. They rejected monarchy, democracy, pure republicanism, and other forms of government and instead opted for a Constitutional Republic.
A republic allows the people to elect representatives who govern on their behalf. A Constitutional Republic limits what those representatives can do in the name of the the People. Unfortunately, as our country has grown is size our government has also grown in complexity. The size of the Executive Branch has grown along with our country and the need to execute the laws has morphed into the creation of regulations which have the force of law. This has led to the rise of an army of government bureaucrats whose sole reason for existing is to create, administer, and adjudicate the regulations of our government.
At any point we are just two steps away from being hurled from being a constitutional republic into becoming a de facto monarchy. Those two steps are the absorption of the powers of government from one branch of government into the other.
There are some who argue we are already dealing with lots of little monarchs in the form of unelected government bureaucrats who can write regulations, enforce those regulations, and rule on the proper application of those same regulations. https://youtu.be/ZwmUH5AGydQ
Source: PragerU
Fortunately, Congress has enacted laws which can be used to limit regulations allow Congress to review and strike them down, although it hasn't happened very often.
However, when the judiciary legislates, there is no one outside the judiciary who has the power to nullify or roll that back. Congress can pass laws to contradict or clarify, but a legislative judiciary can simply ignore all that and rule according to their own whims, rather than limiting themselves to their legitimate role.
Conclusions
Judicial legislation is a serious threat to our rights because it violates the separation of powers in the US Constitution. It removes one of the essential checks and balances designed to protect us from a rapacious government.
The real importance of Roe v Wade is not whether or not a woman has a right to an abortion. The real importance, and the reason liberals use it as a litmus test, is that the way the decision was framed was a broad act of judicial legislation. As such, it is a key lever progressives want to keep using to subjugate individual rights and individual will to their own will and whims. When a candidate for SCOTUS embraces Roe v Wade, they aren't embracing abortion. They are actually embracing judicial legislation.
Follow Tom on Twitter: @ThomasKSheppard
Tom Sheppard is a business consultant and coach to small business owners and individuals. He is a recognized author with dozens of titles in business and fiction to his credit. One of his endeavors is to help those who want to see their own book in print. He does this through his trademarked Book Whispering Process (TM).
The author is not an official spokesperson for any organization or person mentioned herein.
(c) Copyright 2020 A+ Results LLC. All Rights Reserved.
Your comments are welcome... Please observe some ground rules. No profanity, vulgarity, or personal attacks. Profanity, vulgarity and personal attacks not only betray a lack of vocabulary and imagination, they also are the hallmarks of bigotry, and bigotry is the hallmark of someone who is fundamentally insecure in their views. Facts are always welcome.
If you believe Government is NOT the answer to all our problems, you will want to read
Godvernment: Government as God
Godvernment: Government as God
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