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On January 22, 1973 the US Supreme Court, in the Roe v Wade decision, declared all state abortion laws unconstitutional unless and until they conformed to the court's guidelines . . . guildelines that were immediately denounced as arbitrary and supercilious. But we'll get to that later.
Right away, principled libertarians objected, even those that were in favor of 'abortion rights'. This was because they understood that the courts had no constitutional power to negate state laws, laws that had been patiently and meticulously put together by the AMA in the 19th century (see: The 19th Century Physicians' Crusade Against Abortion, available at Mankato State University library, my 1992 thesis topic).
There is a laundry list of things states are not permitted to do in Article I, Section 10 --- and guess what? Outlawing abortion is not one of them.
When I joined the prolife movement in 1980, inspired by Ronald Reagan and people like Jack Willkie, Judy Brown and Mildred Jefferson, I was told the well-meaning nonsense, 'The only way to overturn a supreme court decision is by passing a constitutional amendment.'
Since that time, we have seen citizens push (and fail) for a constitutional amendment to ban flag burning, to balance the federal budget, and a host of other issues.
First of all, we wouldn't have to worry about balancing the federal budget if Congress simply obeyed the 10th amendment and remained within the limits of power that it is obliged to do.
Secondly, local laws against flag burning are perfectly constitutional. They might be unjust, but that is not a case for the First Amendment or the Supreme Court. Why? Because the very first word in the 1st amendment is: CONGRESS. It says 'Congress shall make no law . . . '
It does not say 'Congress and the states' or 'Congress, states and municipalities'.
The fact that the courts have gotten away with inventing words that aren't even there for so long demonstrates the level of constitutional ignorance, not only of us as citizens, but for lawyers (which is what a judge is, after all) !
Let's go back to the guidelines laid down by Roe v Wade and its seldom-studied companion case, Doe v Bolton.
In Roe, the court was accused of 'judicial legislation' and 'raw judicial power' by the dissenting justices Byron White and William Rehnquist. It stated that abortion could be legal A) in the first three months of pregnancy with no restrictions, B) in the second three months, laws may require regulation of the practice, and C) abortion might be outlawed in the final three months of pregnancy 'except in cases where the life and health of the mother' might be in danger.
And 'health' was defined so broadly as to include 'mental health'.
In other words, Roe was abortion-on-demand all nine months of pregnancy. And, this was confirmed by a Senate inquiry in 1982. To many people, even those who are in favor of early abortion, this still comes as a shock.
For the first 20 years, prolifers had a hard time convincing the public that this was in fact the case. I recall having to demand additional column inches after editors changed my own letters to the local papers from 'all nine months' to 'first three months' and sometimes 'first six months' of pregnancy.
That all changed about ten years ago, however, when the hideous procedure known as 'partial birth abortion' became acknowledged fact by abortion apologists and practitioners. The unthinkable is now upon us: deliberate pregnancy for organ harvest; for art; even the definition of 'personhood' might be delayed until age four or even seven years of age.
I could go on for a long time, but I think I have made the point: the judiciary is out of control and Congress refuses to control it. Yet Article III Sec. 2 of the Constitution gives Congress the power to do just that, without having to resort to the drastic measure of impeaching court justices.
I will continue in Part 2 discussing the dangerous Kelo v New London case of 2005, a threat against our property rights, and how the executive branch and the legislative branch (the president or Congress) can defy the court's warped opinions.
But also . . . the states!
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