As voters explore their options in this critical election year, abortion will be one of the pivotal issues that could determine the outcome in a close race for the Presidency. Democrats and pro-abortion forces fear that a Supreme Court comprising constitutional strict constructionists may overrule Roe v. Wade and many women worry that they would be denied the opportunity to kill their unborn children.
Rest assured ladies, if Roe v. Wade were indeed reversed by a moral Supreme Court majority your ability to abort would not be jeopardized.
Before Roe v. Wade in 1973 each state decided how to deal with the issue of abortion; so all a reversal of the Roe decision would do would be to return it to the states as it was before Roe where people - pro-life and abortion advocates alike – have an opportunity to decide how their state deals with abortion.
All the hysteria about the possibility that a Republican elected to the White House will “take away a women’s right to choose” is nothing more than Democrat hyperbole to win the presidency and keep Democrat majorities in the House and Senate because the facts are otherwise.
Voters would be wise to read "Abortion under State Constitutions," written by noted constitutional scholar Paul Benjamin Linton. As one reviewer wrote “This book dispels the notion that overturning Roe v. Wade would make abortion illegal throughout the U.S. Instead, in a post-Roe America, the focus of legal and political debate would merely shift to new and relatively unfamiliar battlegrounds - the courts and legislatures of each of our fifty states - where legal skirmishes about state-based abortion rights already have been fought, or will break out sooner rather than later. Paul Linton's new book provides the first full-length analysis of the relevant constitutional issues in this newest phase of our ongoing, nationwide ‘abortion wars’” - which could determine whether Obama/Biden or McCain/Palin are elected.
According to Linton's carefully researched book, more than one-half of all the abortions performed in the United States each year would still be "constitutionally protected" even if Roe v. Wade is overruled. Moreover, more than three-fourths of the states have repealed their pre-Roe laws, which would not be revived by a decision overruling Roe. Linton says "Abortion advocates have undertaken a long-term, national strategy to persuade state supreme courts to recognize abortion rights under state constitutions. They have already succeeded in twelve states, including several of our most populous states, where more than half of all abortions in the country are performed.”
For each state, Linton discusses the possible sources in a state constitution from which abortion advocates might try to derive a right to abortion; such as, privacy, due process of law, equality of rights, equal protection, privileges and immunities, as well as other provisions. Before anyone starts worrying about a woman’ ability to get an abortion, and uses that concern to decide who to vote for, they should learn what their state’s position on abortion was before the Roe decision. The Linton book provides this information and also explains what rights state laws has conferred upon unborn children outside the context of abortion.
Nonetheless extremists would have women and others uncertain about the abortion issue believe that reversal of Roe v. Wade will have catastrophic effects. For example, Planned Parenthood warned that a single ruling reversing Roe from the nation's highest court could make abortion illegal everywhere. The group said that under states’ laws, women and doctors could be sentenced to prison and fined for performing abortions in any case other than when a pregnant woman is dying. Only Roe v. Wade, the Supreme Court ruling in support of abortion rights, is preventing such laws from going into effect according to Planned Parenthood. How ridiculous is this?
Unfortunately the abortion issue is so emotional that statements made by the likes of Planned Parenthood (who by the way makes a lot of money from abortions) fuel emotions and cause abortion supporters to refrain from learning about the issues themselves.
In the Roe case the U.S. Supreme Court "reached" for some support in the constitution for their decision. This is often done when any court, including the highest court of the land, knows the decision it wants to make but has trouble actually supporting that decision lawfully. The majority did this by changing the recognized meaning of the 14th Amendment to find a “right of privacy” in the language despite that this "right" is not mentioned. Justice Rehnquist was totally correct in noting that at the time of the 14th Amendment, and long after it was enacted, many states had laws on the books against abortion in one form or another, generally based on the moral implications and concern that the unborn had no one to fight for their lives. As Rehnquist said:
“The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not as universally accepted as the appellant would have us believe.”
Do you suppose those writing the 14th Amendment intended to outlaw abortion under these circumstances?
Generally Democrats, the news media and abortion supporters paint a greatly exaggerated picture of public support for the Supreme Court's abortion policy -- first by minimizing the actual scope of the Roe v. Wade ruling, and second by distorting what it would mean to 'overturn' Roe.
A few years ago the Associated Press reported that in an AP-sponsored poll by Ipsos-Public Affairs, 59 percent of respondents said they thought President Bush should nominate Supreme Court justices who would uphold Roe v. Wade, while 31 percent want to overturn Roe even when told it applies to the first three months. Twenty five percent said abortion should not be permitted after the three-month point. In the Supreme Court's most recent abortion ruling, in 2000, the Court even struck down a state ban on partial-birth abortion, which is a method used in the fifth month and later, as inconsistent with Roe v. Wade. At least 68 percent of the public favors a ban on partial-birth abortion.
I believe it is way past time for Democrats and the news media to stop distorting the real terms of Roe v. Wade. The news media uses two forms of distortion to create a greatly exaggerated picture of public support for the Supreme Court's abortion policy - first by minimizing the actual scope of the Roe v. Wade ruling, and second by distorting what it would mean to 'overturn' Roe. These distortions greatly stack the deck. Roe v. Wade allows absolutely no limits on reasons for abortion until nearly six months into pregnancy - which is a policy that is supported by, at most, 20 percent of the public. Poll after poll shows that 70 to 80 percent of Americans say they favor limitations on abortion that are not permitted under Roe. If the Supreme Court overturned Roe v. Wade, the effect merely would be to allow elected lawmakers in each state to place limits on abortion, including a ban on partial-birth abortion.
The public deserves from the news media not the continued propagation of discredited myths, but a more candid discussion of the effects of Roe and the legal effects of changing Roe.
As an example of how Roe is mischaracterized in the press, in the early 1980s senior news executives of the Associated Press, The New York Times, and other major organs of the news media formally and erroneously declared that Roe legalized all abortions. A directive by Louis Boccardi, then executive editor of the Associated Press, dated September 4, 1981, said, "The [Roe vs. Wade] decision is often misreported, even now. . . . For summary purposes, you can say the court legalized abortion in 1973. . . . Thus, it's wrong to say only that the court approved abortion in the first three months. It did that, but more."
The National Desk of the New York Times specified in 1982 that "brief references to the Supreme Court's 1973 decision on abortion should say simply that the Court legalized abortion," because "the phrase 'in the first three months of pregnancy' might be incorrectly interpreted to mean that abortions in the last six months of pregnancy remain illegal."
News stories frequently imply that the effect of overturning Roe would be to make all abortions illegal, noting that "polling consistently has found a clear majority of people who think abortion should be legal at least in some cases." Other news media reports also incorporate this misconception in more explicit forms. For example, ABC World News Tonight once referred to the prospect of "a U.S. Supreme Court that will outlaw abortion."
It’s no wonder that abortion supporters believe the world will end with reversal of Roe vs. Wade. Unfortunately based on this false belief, the outcome of the presidential election may be determined.
In reality, however, even if the Supreme Court completely overturned Roe v. Wade, abortion would not be outlawed. In fact, if the Supreme Court overturned Roe v. Wade, that action alone would not make any abortion illegal. Rather, the effect of overturning Roe v. Wade would be to allow (but not require) elected state lawmakers to decide what degree of legal protection should apply to unborn children. Indeed, the leading pro-abortion litigation organization, the Center for Reproductive Rights, once issued a report ("What If Roe Fell?") that contained the following accurate observation: "A Supreme Court decision overturning Roe would not by itself make abortion illegal in the United States. Instead, a reversal of Roe would remove federal constitutional protection for a woman's right to choose and give the states the power to set abortion policy."
Democrats and their pro-abortion allies fear this because polls consistently show majorities of 70 percent and more are for limitations on abortion that are clearly not permitted by the actual Roe v. Wade decision.
For historical purposes, it is interesting to note the laws on the books at the time of the 14th amendment and still remaining after the Roe decision.
Here are jurisdictions that enacted abortion laws prior to the adoption of the Fourteenth Amendment in 1868:
1. Alabama -- Ala. Acts, c. 6, § 2 (1840).
2. Arizona -- Howell Code, c. 10, § 45 (1865).
3. Arkansas -- Ark. Rev. Stat., c. 44, div. III, Art. II, § 6 (1838).
4. California -- Cal. Sess. Laws, c. 99, § 45, p. 233 (1849-1850).
5. Colorado (Terr.) -- Colo. Gen. Laws of Terr. of Colo., 1st Sess., § 42, pp. 296-297 (1861).
6. Connecticut -- Conn. Stat., Tit. 20, §§ 14, 16 (1821). By 1868, this statute had been replaced by another abortion law. Conn. Pub. Acts, c. 71, §§ 1, 2, p. 65 (1860).
7. Florida -- Fla. Acts 1st Sess., c. 1637, subc. 3, §§ 10, 11, subc. 8, §§ 9, 10, 11 (1868), as amended, now Fla. Stat. Ann. §§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia -- Ga. Pen. Code, 4th Div., § 20 (1833).
9. Kingdom of Hawaii -- Hawaii Pen. Code, c. 12, §§ 1, 2, 3 (1850).
10. Idaho (Terr.) -- Idaho (Terr.) Laws, Crimes and Punishments §§ 33, 34, 42, pp. 441, 443 (1863).
11. Illinois -- Ill. Rev. Criminal Code §§ 40, 41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a subsequent enactment. Ill. Pub. Laws §§ 1, 2, 3, p. 89 (1867).
12. Indiana -- Ind. Rev. Stat. §§ 1, 3, p. 224 (1838). By 1868 this statute had been superseded by a subsequent enactment. Ind. Laws, c. LXXXI, § 2 (1859).
13. Iowa (Terr.) -- Iowa (Terr.) Stat., 1st Legis., 1st Sess., § 18, p. 145 (1838). By 1868, this statute had been superseded by a subsequent enactment. Iowa (Terr.) Rev. Stat., c. 49, §§ 10, 13 (1843).
14. Kansas (Terr.) -- Kan. (Terr.) Stat., c. 48, §§ 9, 10, 39 (1855). By 1868, this statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28, §§ 9, 10, 37 (1859).
15. Louisiana -- La. Rev. Stat., Crimes and Offenses § 24, p. 138 (1856).
16. Maine -- Me. Rev. Stat., c. 160, §§ 11, 12, 13, 14 (1840).
17. Maryland -- Md. Laws, c. 179, § 2, p. 315 (1868).
18. Massachusetts -- Mass. Acts & Resolves, c. 27 (1845).
19. Michigan -- Mich. Rev. Stat., c. 153, §§ 32, 33, 34, p. 662 (1846).
20. Minnesota (Terr.) -- Minn. (Terr.) Rev. Stat., c. 100, §§ 10, 11, p. 493 (1851).
21. Mississippi -- Miss. Code, c. 64, §§ 8, 9, p. 958 (1848).
22. Missouri -- Mo. Rev. Stat., Art. II, §§ 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) -- Mont. (Terr.) Laws, Criminal Practice Acts § 41, p. 184 (1864).
24. Nevada (Terr.) -- Nev. (Terr.) Laws, c. 28, § 42, p. 63 (1861).
25. New Hampshire -- N. H. Laws, c. 743, § 1, p. 708 (1848).
26. New Jersey -- N. J. Laws, p. 266 (1849).
27. New York -- N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, §§ 8, 9, pp. 12-13 (1828). By 1868, this statute had been superseded. N. Y. Laws, c. 260, §§ 1-6, pp. 285-286 (1845); N. Y. Laws, c. 22, § 1, p. 19 (1846).
28. Ohio -- Ohio Gen. Stat. §§ 111 (1), 112 (2), p. 252 (1841).
29. Oregon -- Ore. Gen. Laws, Crim. Code, c. 43, § 509, p. 528 (1845-1864).
30. Pennsylvania -- Pa. Laws No. 374, §§ 87, 88, 89 (1860).
31. Texas -- Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).
32. Vermont -- Vt. Acts No. 33, § 1 (1846). By 1868, this statute had been amended. Vt. Acts No. 57, §§ 1, 3 (1867).
33. Virginia -- Va. Acts, Tit. II, c. 3, § 9, p. 96 (1848).
34. Washington (Terr.) -- Wash. (Terr.) Stats., c. II, §§ 37, 38, p. 81 (1854).
35. West Virginia -- See Va. Acts., Tit. II, c. 3, § 9, p. 96 (1848); W. Va. Const., Art. XI, par. 8 (1863).
36. Wisconsin -- Wis. Rev. Stat., c. 133, §§ 10, 11 (1849). By 1868, this statute had been superseded. Wis. Rev. Stat., c. 164, §§ 10, 11; c. 169, §§ 58, 59 (1858).
At the time of the 14th Amendment 36 states had laws relating to abortion. How likely is it those writing and/or voting for the Amendment expected that the amendment would apply to ban abortion laws in 36 states as “unconstitutional”?
Here is the line up of states where abortion laws in effect in 1868 when the 14th Amendment was enacted and are still in effect, but not enforced because of the Roe vs. Wade decision:
1. Arizona (1865).
2. Connecticut (1860).
3. Florida (1868).
4. Idaho (1863).
5. Indiana (1838).
6. Iowa (1843).
7. Maine (1840).
8. Massachusetts (1845).
9. Michigan (1846).
10. Minnesota (1851).
11. Missouri (1835).
12. Montana (1864).
13. Nevada (1861).
14. New Hampshire (1848).
15. New Jersey (1849).
16. Ohio (1841).
17. Pennsylvania (1860).
18. Texas (1859).
19. Vermont (1867).
20. West Virginia (1863).
21. Wisconsin (1858).
How likely is it that these states would retain laws banning abortions? Do you think northeastern states like Connecticut, Massachusetts, New Jersey, Pennsylvania, Vermont and New Hampshire (and you can add others from this list) would continue to ban abortion – not likely?
So what would be the effect of reversing Roe vs. Wade, even if that actually occurred – not much? Women’s rights to make decisions about their unborn children would not be seriously affected. It is also worth considering that the father has absolutely no say in this decision despite the fact that if the baby is born it is the father who is inevitably asked to support the child, and the mother.
Voters should understand the real affect of the (unlikely) possibility that Roe v, Wade would be reversed and make voting decisions accordingly.
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