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Roe vs Wade: A Nullification Issue

Posted by | April 27th, 2012

Below, is a very insightful post from The Tenth Amendment Center, on the complex issue of abortion, and how the Jeffersonian principle of Nullification, and our Tenth Amendment, applies:

Abortion is murder.

A woman has a right to choose.

Few issues divide a room, a city or a country faster than abortion.

The abortion issue creates a political and philosophical quagmire, pressing itself into the realm of science and religion, the right to life and of personal sovereignty.

In 1973, the U.S. Supreme Court interjected the federal government into the issue, ruling that a Constitutional right to privacy enforced through the due process clause of the 14th Amendment grants women the right to an abortion.

The decision makes mincemeat out of the Constitution. An enumerated right to privacy exists nowhere. One could argue that individuals possess a natural right to privacy, and further assert that the federal government has no authority to abridge that right under the Ninth Amendment. But the Bill of Rights was never intended to bind the states, and the Tenth Amendment leaves all power not delegated to the United States to the states and the people.

Abortion should never have become a federal issue.

Justice Byron White alluded to this in a blistering dissent.

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and ances a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

One would expect those who support abortion rights to cling tenaciously to the Court’s decision. It enforces their view on every state and individual. But more surprisingly, many in the anti-abortion camp also prefer to fight the battle at the national level, resisting any proposal to throw the issue back to the states where it belongs.

A Tenth Amendment Center supporter sent a letter to Steven Ertelt, the editor Life News, a major pro-life publication. The TAC supporter suggested state nullification of the Supreme Court decision was the best way to fight the abortion battle.

Work must shift to the individual States legislatures and their citizenry because we now know they have the authority to overrule unconstitutional laws and court decisions as protectors of the Constitution as intended by our Founding Fathers.

Ertelt’s response illustrates a centralized, federal government oriented, mindset.

We live in a Supreme Court dominated political culture now. That kind of vote won’t happen. So the goal is electing a pro-life president and getting the 5th justice we need to overturn the decision.

How’s that approach working for you, 38 years later, Mr. Ertelt?

He apparently hasn’t really thought through the actual realities. The Supreme Court has no power to outlaw abortion. The federal government has no authority over life and death matters. That’s why federal laws against murder don’t exist. It is a state issue. So at best, Ertelt and pro-life advocates can only hope for a decision overturning the ridiculous assertions of Roe, throwing the issue back to the states.

So here’s a question for pro-life advocates: why waste the time and energy battling at the federal level when the states rightfully hold the keys? Court rulings carry no weight when they defy the Constitution, and states should simply refuse to enforce them.

In fact, some states have already started to flex their muscles.

Last week, the Ohio House passed a bill that would make abortion illegal after the fetus has a detectable heartbeat. HB 125 passed 54-44.

The law would not punish the woman who had the abortion, but instead targets abortion providers.

The Ohio bill does not rest on a constitutional argument, but instead asserts the ineviability of a fetus after the heart begins beating. Even many in the pro-life community oppose the bill, fearing the courts won’t buy the argument and that it will simply strengthen Roe.

Unfortunately, the court has ruled that states can place limitations on post-viability abortions, but pre-viability there can be zero restrictions,” executive director of Ohio Right to Life Mike Gonidakis told the Columbus Dispatch. “We certainly don’t want the courts to reaffirm Roe with a decision in Ohio.

The fundamental question remains, why should five black-robed demi-Gods have the right to decide for the people of Ohio how they choose to define viability?

Answer: they shouldn’t.

And federal courts have no authority to do so under the Constitution.

Georgia Rep. Bobby Franklin filed a bill during the 2011 legislative session that got more to the point. The legislation declared life begins at conception and went on to assert the state’s right and responsibility to protect the lives of its citizens.

(6) The United States Congress has reserved to itself ‘all legislative powers herein vested’ according to Article I, Section I of the Constitution of the United States;

(7) ‘Herein vested’ to the United States Congress applies to only five crimes: (1) counterfeiting, (2) piracy, (3) felonies on the high seas, (4) offenses against the law of nations, and (5) treason; according to Article I, Section VIII and Article III, Section III of the Constitution of the United States;

(8) Murder is not counterfeiting, piracy, felony on the high seas, an offense against the law of nations, or treason;

(9) Georgia has, therefore, reserved to itself exclusive jurisdiction over the definition and punishment of murder under Amendment X of the Constitution of the United States.

A similar bill was considered in the South Carolina legislature. Proposed legislation in Indiana would make abortion illegal in that state, “unless a physician determines, based on sound medical practice, that the abortion is necessary to save the life of a pregnant woman.”

Ultimately, abortion comes down to an individual’s views on life, morality and sovereignty. No law, made at any level, will ever really end abortion, nor will it change the minds of those convinced it is a life issue. But at the very least, lawmaking should devolve to the lowest level of power possible. Let the people of each state battle it out and decide for themselves what restrictions, if any, they choose to place on abortion.

The issue properly falls within the states sphere of power. SCOTUS had no authority to rule one way or another on abortion. But since the federal government insists on overreaching and sticking its supersized nose into areas it has no business, it’s up to the states to reach out and smack that nose and keep it in its proper place.

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14 thoughts on “Roe vs Wade: A Nullification Issue

  1. Thomas Fleres

    I agree with the article for the most part. The constitution doesn’t give the federal government authority in this area. However I wouldn’t mind seeing a constitutional amendment in the future protecting all human life at the federal level.

    1. Mark Ross Post author

      I share the same conviction as you for the sanctity of life, but here is where I see a problem, with a blanket prohibition: How do you protect the life of an unborn baby without violating the natural rights of a woman, and the sanctity of her body?

      Stated differently:
      Empowering Government to FORCE a woman to give birth.

      The other thing that should be obvious to all, is that, no law or prohibition will stop women from seeking abortions. Making abortions illegal will only drive it underground, and make it, perhaps, even more abhorrent.

      1. Jackie Durkee

        Just like with regular murder, there are some cases where a person would not be convicted for taking the life of another person (self-defense, etc). I believe it is the abortion on demand that most Christians take offense to.

        1. Mark Ross Post author

          I agree! Abortion on demand is absolutely wrong, and immoral! I would also like to get your take on what I replied to Thomas, above:

          “The other thing that should be obvious to all, is that, no law or prohibition will stop women from seeking abortions. Making abortions illegal will only drive it underground, and make it, perhaps, even more abhorrent.”

          1. Jackie Durkee

            That is a hard one for me because we are choosing one evil over another possible worse evil. However I also do believe that once you make something legal, it is very difficult if not impossible to make it illegal. The Prohibition era taught us that.

            That is how Satan works and that is why I truly believe our world will only get more and more evil until the 2nd coming of Christ.

            With drugs and alcohol, I have no problem with them being legal, because whatever destruction a person does to their own bodies is up to them. But with abortion we are talking about one person taking the life of a defenseless other person. I’m rambling now so I’ll quit

            1. Mark Ross Post author

              “That is a hard one for me because we are choosing one evil over another possible worse evil.”

              But, that is exactly my point! To say, we should just outlaw abortion, might make us feel good, because we took a moral stand, but, at the same time, it would, undeniably, create another evil. And, that is why I don’t think I could ever support a general prohibition. A much better policy needs to be found.

              I’m not sure I understand your Prohibition analogy, Jackie. Alcohol was always legal, “until Prohibition.” It was The Prohibition on alcohol that drove alcohol sales and consumption underground. And, thus, creating the gangsters and thugs – just as the so-called War on Drugs has done today.

              Of course, human life is far more precious and important then alcohol etc; but, the general principle is the same: If you completely outlaw something, an underground market will spring up. And the result is never pretty!

  2. Jackie Durkee

    Good article. This is one of the only areas where me and libertarians differ in a big way. I believe taking the life of a fetus is murder and evil and just like we would not allow the murder of an actual born person to be o.k. We should not allow murder of a person in the womb to be o.k.

    That being said, I do agree that this should be dealt with on a state level and not the federal level and for sure no federal dollars (or state dollars for that matter) should go to fund it.

    At least, at the state level, if I don’t like the state I live in who supports pro-choice and abortion on demand, then I can move to another state. Right now, I would have to move out of the country.

    The difficulty in going this direction is with the way the courts are set up. If I contest an abortion issue with the courts in my state and I lose, then I take it to the Supreme court of that state. If I lose there and want to contest it, I can see about taking it to the Supreme Court of the United States. That is where it will be defeated everytime. I think.

    1. Mark Ross Post author

      Libertarians, also, differ in this area. But, yes, abortion, and ALL other social issues, belong at the state-level, for exactly the reasons that you stated.

      Also, there is no doubt that abortion is the termination of a life. But, if it were to be “legally” classified as murder, then it is a wholly state’s rights issue. But, that is exactly the point of the above article! If a state classifies abortion as murder, then The Federal Government, including The Supreme Court, have no jurisdiction in the area!

      I also agree with you that abortion is immoral; but, I will pose to you the same question that I posed to Thomas:

      “How do you protect the life of an unborn baby without violating the natural rights of a woman, and the sanctity of her body”?

      Also, in regards to using tax-payer dollars for abortions, here is what I wrote in a previous post:

      “While abortion is, and likely, always will be, one of the most contentious social issues that our country faces, will Romney pursue legislation that guarantees, without a shadow of the doubt that, our tax dollars will not be sent to any institution where the practice of abortion is provided? Those of us, who truly believe in the sanctity of life, also realize that, the issue of abortion can not be solved with a one-size-fits-all solution – and therefore, as with all social issues, must be returned to the states, where the states can come up with innovative ways to address these contentious issues. The best ideas, most certainly, will be adopted by our respective states. While abortion, in some form, will, likely, always exist, I am certain that there are solutions that could seriously curtail the need and desire to pursue that avenue – to which most Americans could be satisfied with.”

      1. Jackie Durkee

        Well put and as you mention about abortion to protect the life of a mother. To me, that would be in the same vein as when someone kills someone in self-defense, or in the defense of a family member. In other words, if someone points a gun at my child, and I shoot that person before they shoot my child, I will not be charged with murder. To me, abortion to protect the life of the mother would be the same thing.

        1. Mark Ross Post author

          I think you misunderstood me. I am saying that, a woman has a natural right to not have her body violated. So, if Government could force a woman to do something, isn’t that violating her body?

          And, if Government can force a woman to give birth, couldn’t they expand on that power, and one day, force women to have abortions, like they do in China? In other words, if Government could make women give birth, why couldn’t they, one day, prevent them from giving birth?

          Also, I stand firmly on the belief that, if a women has an abortion, simply because she decides she does not want that baby, it does not free her from the Judgement of God! Any of us who take another person’s life, will likely, have to answer for it, one day.

  3. Thomas Fleres

    I don’t think you can separate the two (privacy and the abortion act). I realize the law would be telling a woman what needs to be done inside of her body when it comes to preventing the abortion; but remember there is also human life in her body. That makes all the difference in the world. We’re not just talking about some body part or tissue; we’re talking about another real human being that also has rights. That is the right to a life.

    I really don’t think you can compare prohibition of alcohol to prohibition of abortion. The reason prohibition of alcohol failed is because it penalized those that drank responsibly. There is nothing morally wrong with alcohol unless you abuse it and start harming others with your actions. People realized this and drank anyways because many saw this law as totally unfair to those not hurting anyone else. When you look at abortion it is a totally different scenario. There is a human fetus that is tortured to death.

    If abortion was outlawed I’m sure you would have an underground market, but I think you would have much less abortions taking place. There is much more that goes into providing an abortion than providing drinks. I think by making abortion illegal there would be a real deterrent to having one due to not only getting caught, but by the risks involved of it going bad; thus more harm being done to the woman. If we’re going to worry about underground markets we might as well take all laws off the books. That would surely fix that, but I don’t want to live in a society that looks the other way as others are harmed or killed.

    1. Mark Ross Post author

      Hey Thomas,
      Again, I agree with pretty much everything you wrote. I was also clear, in regards to prohibition that, there is no comparison between alcohol and human life.

      “I realize the law would be telling a woman what needs to be done inside of her body when it comes to preventing the abortion; but remember there is also human life in her body.”

      And, therein is what makes it such a complex issue. That is why this should not be seen as a black and white – either/or, issue. We need to have good policies in place that will make women not want to chose abortion, while also having policies that put strict limitations on the practice itself. Also, making sure that no tax dollars are used to fund any form of abortion.

      I wish I had an easy answer, but I still disagree with having a total prohibition, even though I do agree that, tragically, every abortion does equal the termination of a human life.

      Studies are showing that the rate of abortions are going down due to modern technologies etc. This is also why it is imperative that states continue implementing different policies, so that we can find out what policies work best.

  4. Jackie Durkee

    The social problems in our country truly will not get better going through the governments to make it so. On Wednesday, I wrote an article called, “Another Four Years Toward Socialism.” Below is the last paragraph I wrote where I state what I feel is needed for true social change in the United States:

    “Where I put my hope is in the Lord and in prayer. I will continue to do my civic duty and vote, write and speak out, but our only real hope for America is for us Christians to wake up, grow closer to God in Scripture and prayer and start a revival in this country like no other. The only way to change this country at this point is to start changing the culture and to do that, we Christians need to get real about our faith, get real about spreading that faith to others, and being one of many sparks to spread a wild-fire of faith across the United States. Until that happens, nothing in the United States will change and will only get worse. Christians need to get off the fence. Let us not be like the Christians in the Church of Laodicea in Revelations 3:14-22 where Christ tells us, 15 I know your deeds, that you are neither cold nor hot. I wish you were either one or the other! 16 So, because you are lukewarm—neither hot nor cold—I am about to spit you out of my mouth.

    1. Mark Ross Post author

      “The social problems in our country truly will not get better going through the governments to make it so.”

      Spot on Jackie! All of these social problems that we constantly discuss, can be traced directly to our Federal Government’s failed, and unconstitutional policies! Let’s do the simple math: Years ago, we were a far more Godly country, and we had far less Government. Today, Government is involved in almost every aspect of our lives, and both our country’s faith in God, and the admiration for our Founding principles, are slowly deteriorating. No doubt, there is a direct correlation!

      We need far less Legislation, and far more Bibles!


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