Most, if not all of us read or heard today the Justice Anthony Kennedy is retiring from the Supreme Court, effective the end of July. He’s 81 years old and has been on the court since 1988. He’s regularly called the swing vote on a court that has 4 conservatives and 4 liberals. He became the unknown in several high profile case, like some this week, where he voted with the conservatives.
Liberal voices went crazy. How dare an 81 year old man retire, even though neither liberals or conservatives could count on his vote.What was more concerning for some though, was the possibility that Roe V. Wade could come back to the court and that decision, which gave women the right to abortion may be overturned, depending on who is Kennedy’s replacement on the Supreme Court.
Is it possible Sure it is. Why? The court, in 1973 did what we’d cll today “Judicial Activism” and ruled in favor of “Roe” that the government may not prohibit a woman from having an abortion. What was their ruling based upon? Remember that the Supreme Court takes u cases that have to do with Constitutional rights and laws passed by Congress or States and Municipalities (or businesses!) that may violate that document.
The court however, made new law. They decided, in the majority that the right to an abortion was a right to privacy. Now, I’ll wait while everyone pulls up the Constitution and do a search for the word, privacy.
Back? Okay, note it doesn’t exist. There’s no such right enumerated anywhere in the Constitution. It’s bad law and since that 1973 decision, the court has made law, where no government right exists. Think Kelo, where the court decided that the long standing interpretation of the 5th Amendment no longer held sway. Normally government could take someone’s property if it were for public use, as in roads, bridges, hospitals, or government buildings. Kelo, overturned that longstanding interpretation by saying that government may take someones property for any reason they deem. It’s another example of bad law.
The same applies to the Roe decision. Before anyone accuses me, a conservative, of being anti-abortion let me just state for the record:
Yes, I believe that women have a right to terminate pregnancy.
No, I do not believe the government, at any level, has a right to tell a woman she may not terminate an unwanted pregnancy.
But Roe is based on something which doesn’t exist in the Constitution and there may be a better argument which does exist there.
It’s the 13th Amendment to our Constitution. This was actually posited to me a few years ago by a friend online. Take moment and read what it says.
Yes, it’s the Amendment that prohibits slavery in the United States, but more than that, involuntary servitude. Forcing a woman to take pregnancy to term without her consent could be, and in my opinion should be, considered as just that: involuntary servitude.
I’m not a lawyer but just the clear reading of that amendment would seem to make that argument.Any justice that claimed to be a “strict constructionist” I think would have to agree.But then, we’re not in those times.
Do I think that the Roe decision will come before the Supreme Court again the future? Yes, I do. I hope this time, those advocating for women rights study the document they purport to serve and that the court, again comes to the correct decision, but in this case actually based on the Constitution.