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Wednesday, November 16, 2005


Abortion and the Constitution

"...the Constitution does not protect a right to an abortion." -Samuel A. Alito Jr.

A recent article in the New York Times revealed the above quote, written in 1985 by the Supreme Court nominee Samuel A. Alito Jr. This is a fascinating statement considering our focus in the Constitution and Economy class. I do not really want to discuss the normative implications of the statement because we all have personal beliefs about the rightness or wrongness of abortion. What I would like to do is simply look at the words of the CONSTITUTION for evidence which either supports or condemns the claim made by Alito above.

"...the Constitution does not protect a right to an abortion."

Without getting into the details which so often hold up conversation, i.e. the ethical/biological/spiritual details, I think we may be able to formulate an argument that is consistent with the Constitution. We can say that if the Constitution grants the power to Congress to PROHIBIT abortion then, as Alito claims, there is no RIGHT to abortion. However, if the Constitution does NOT explicitly grant the power to the government to PROHIBIT abortion, then we know we have a RIGHT to abortion. The Constitution either protects the "right to an abortion" OR it grants the government the power to deny it as a right. As far as I can see, these are the only two options in this matter.

As we know the Constitution specifically outlines the role of government; it grants express powers to Congress to make laws which are necessary and proper to fulfill that role, which is explicitly written in Article 1, Section 8. It is apparent that nowhere in the Constitution does it say that Congress has the power to regulate or prohibit abortion. Congress can pass laws to regulate Interstate Commerce, levy taxes, and promote the General Welfare and Public Health. I don't see how abortion falls into any of these categories which would require government intervention. This leads me to see the Constitution as protecting the RIGHT to abortion, contrary to Alito's view. The 9th Amendment tells us that just because the Constitution does not state every single right that we have, we still retain them. I believe this is relevant to the issue at hand; do we not, as an individual, own our body, i.e. have the right to do with our body as we choose as long as it does not harm another person? I understand that the term "person" is ambiguous since some consider a fetus a "person" which means a woman can not Constitutionally cause him/her harm. However, if a fetus is NOT considered a "person" then a woman does have a right to do with her body as she chooses. This is beside the point; the 9th Amendment protects our rights that are not expressly stated in the Constitution, and the 10th Amendment makes clear that unless the Constitution gives government the power, the power is reserved to the States or the people. This is a check against legislating morality. Since we did not SPECIFICALLY give government the power to PROHIBIT abortion, then the 9th and 10th Amendments guarantee that the right lies with the people. I'm not even going to address the 14th Amendment (upon which Roe v. Wade was decided) because the right to Privacy is basically captured in the 9th and 10th.

No doubt there are moral quandries here that will lead people to disagree on whether they BELIEVE it is right or wrong, but from the perspective of the Constitution there is no justification to support the quote above. Therefore, I think that Alito, in saying "...the Constitution does not protect a right to an abortion" is wrong.

You write,
Since we did not SPECIFICALLY give government the power to PROHIBIT abortion, then the 9th and 10th Amendments guarantee that the right lies with the people.

It is also possible that the right lies with the state. The Tenth Amendment establishes that police power is reserved to the states. Police power of course is that power which authorizes government to take action to provide for the public health, safety, and morals of citizens of the state. It may be the case that state governments do possess the power to prohibit abortion in the name of the public good. So it may be acceptable for states to prohibit abortion where it is not acceptable for abortion to be prohibitted by fedeal law.

What do you think?

Thanks for the post. I've been trying to decide what to write about for public finance, I think I'll tackle abortion from the framework of economic efficiency.
Hey tateum...hope your semester is going well.

I have a couple of things we might consider regarding what you have said. First, I think Police Power should only be used to prevent harm to others--to their person or property. Any other use of Police Power, I believe, is unjustified. Legislating morality can not work because morals are based on normative foundations--who can say absolutely what is pious and what is impious? So, unless the state can prove harm to another person in the case of abortion, then it would not be justified in using Police Power to PROHIBIT it...and there are some obvious definitional issues that must be overcome here as well.

Second, I think the state would be hard pressed to prove that preventing abortion would benefit the people as a whole. I don't see how abortion can be a Public Health issue--it seems like private health to me. Using Public Safety to justify the PROHIBITION of abortion implies there will be some detrimental effect on the people if the action is not prevented. I don't see this as a plausible line of argumentation either.

Last, but not least, a state is able to make laws to protect its citizenry, but those laws must succumb to the Constitution. Maybe the 14th Amendment can be used here to refute any attempt by the state to PROHIBIT abortion. It states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." If states made a law PROHIBITING abortion, would the Supreme Court simply overturn it because it violates the 14th Amendment--the right to Privacy?

I am not sure that the states have the power to PROHIBIT abortion...Constitutionally that is. I have offered my opinions--be sure to share yours!!!

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I think the conversation here has touched the relevant bases.

Does Congress have the power to make abortions illegal? It seems to me that the answer depends on the meaning of the Commerce Clause. I suggest that an abortion involves an exchange and therefore if commerce. But, most abortions involve exchanges between citizens of the same state. The implication is that an abortion falls outside the power of Congress to regulate INTERstate commerce.

However, one of the cases we study this week, Lopez (1995), includes a discussion of the history of commerce clause jurisprudence. Those in the majority agree the history allows Congress to do about any thing, and they want to reign in Congress in this area. Those in the minority seem to agree as well that history of commerce clause jurisprudence means Congress can do about any thing, and they like it that way. As such, given the number of abortions annually nationwide, there is a substantial commerce in abortion. I would say that my reading of the Commerce Clause would constrain Congress to be constitutionally unable to ban abortion, but that much of the commerce clause jurisprudence since New Deal days implies Congress has such power.

Can state government ban abortion? Banning an exchange requires police power, and in general it seems to be agreed that state government has retained the police power (10th Amendment). So, I would say that state government can ban abortion if doing so is consistent with an appropriate definition of police power. I agree with Dennis that the appropriate definition of police power, mostly comes down to whether government seeks to prevent harm to the person or property of others.

I also don't think privacy is the concern with abortion. After all, a person can't harm another person and protect himself from government by invoking a right to privacy. A person has a right against self incrimination, but government has the power to search what would otherwise be considered private in pursuit of catching the guy that harms others (with appropriate due process of course).

I suggest that the constitutional concerns with respect to abortion boil down to a legislative determination of whether aborting a fetus amounts to harm to another person.

As I remember Roe v. Wade, this is essentially the issue the Court decided its opinion on. I know we all hear about privacy in the context of this opinion, but the real crux of the opinion in my view was the Court's decision that what it learned from medicine at that time was that a fetus could not be a person within the first 3 months. It also found it was a person after 6 months, and that medicine did not provide a definitive answer in the period between 3 and 6 months. I also think the Court suggested that between 3 and 6 months, it would rely on legislatures to decide (although my recollection may be a bit more fuzzy on this).
The purpose of the 9th amendment was to make it clear that just because the Bill of Rights lists a number of things the federal government cannot do, it should not be inferred that the federal government can do everything else. In other words, the 9th was designed to make extra clear that the federal government only has the powers listed in Article I.8. If you add this to what Tateum Bowers says about the 10th, I think it is clear that the neither the 9th nor the 10 amendment guarantee a right to abortion. The 14th amendment doesn't guarantee this right either, but that is another story.
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