Roe v. Wade: A Nullification Issue

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Roe v. Wade: A Nullification Issue

Post by TexasBlue on Wed Jul 13, 2011 5:31 pm

Roe v. Wade: A Nullification Issue

Michael Maharrey
Tenth Amendment Center
July 12, 2011


“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 announces 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 bill would 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 “viability” 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 (R – Marietta) 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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