The Federalists

In the early days of the American Republic, a different form of government existed under the Articles of Confederation. This regime was scrapped due to the utterly ineffectual nature of the federal government under the Articles.

A new government model was needed.

Is abortion a constitutional right?

With input from many leading statesmen, James Madison ultimately penned the Constitution of the United States as it now exists. It was presented to the states for ratification, as it would not become a binding set of laws until a state accepted it.

In order to convince the people of the states to ratify the new Constitution, debates were held in the most public forum possible at the time.

Newspapers carried the “Federalist Papers” to the American public. Literacy at the time was roughly 90 percent, rendering newspapers a very effective means to reach most people.

The Federalist Papers were originally written by Alexander Hamilton, John Jay, and James Madison. They are still one of the most easily digestible and clear commentaries available on the framers’ intent for the United States Constitution.

The Antifederalists

The antifederalists opposed the new Constitution for several reasons.

They feared the new federal court system, they believed that the office of the President was too similar to that of a king, they believed that Congress’s enumerated powers were poorly defined and could be abused, and they thought that the federal government would overpower the states.

Their fears appear to be justified by history.

The largest disagreement was over the inclusion of a written Bill of Rights. The antifederalists wanted one to be appended to the constitution and would oppose ratification until such a move occurred.

Indeed, antifederalists released the Antifederalist Papers as well. Historians are still not sure who wrote them, but the field has been narrowed to men such as Patrick Henry, Melancton Smith, and Richard Henry Lee, among others.

The result of these debates was a compromise in which the federalists received their Constitution mostly unmodified, but with the addition of a Bill of Rights. There were initially twelve amendments in the original Bill of Rights; generally, the first two do not count because they were legal clarifications and did not address the rights of the people.

This historical account is included because in order to answer the question, “Is abortion a constitutional right?” —which is the question of the day—one must understand the definitions of the terms “right” and “constitution” before approaching the core question.

What is a ‘Right’?

A “right” is a moral or legal entitlement.

In the context of the United States Constitution, a right relates to the national government and the civic body. The Constitution implies many rights, and it explicitly states others.

The Bill of Rights—the first ten amendments to the Constitution—exist to specifically enumerate rights that the antifederalists were concerned would be threatened.

Negative Versus Positive Rights

Political philosophers have divided the rights into two separate categories: “negative” rights and “positive” rights.

Negative rights are rights that require other people to be restrained. For instance, a citizen has the right not to be assaulted; violators of that right will be taken before a magistrate to answer to the charge of assault.

Positive rights require action from others. For example, the Affordable Care Act—otherwise known as Obamacare—relies on physicians supplying their services to individual citizens based upon the citizens’ rights under the law.

The proponents of the Affordable Care Act articulated a positive right to healthcare, such that a person has the right to competent healthcare from a professional healthcare provider.

There are serious ethical implications to having a “right” to someone else’s services. During the era leading to the American Revolution, it was common to refer to a free man’s right to “life, liberty, and property.”

In the Declaration of Independence, Jefferson instead chose the phrase “life, liberty, and the pursuit of happiness.” The change clarifies that men do not have a positive right to property, which would have to be provided by those who already have property.

They have a negative right to pursue property and to secure it through some legal means without trampling others’ rights—or, having the property provided to them by the government, which must confiscate it from someone else.

Thomas Jefferson

The Role of the Written Constitution

The United States Constitution was written by a group of thinkers who knew that government power was dangerous and should be restricted by explicit rules about what government cannot do.

They perceived the rights of mankind as “negative” in nature. The Bill of Rights exists to enumerate the actions that the federal government cannot do. If one were to reread the Bill of Rights with fresh eyes, it is plain that it does create new rights.

It states that the rights exist already and renders it illegal for Congress to infringe upon them. The rights written in the Constitution and the Bill of Rights truly preexist the constitution. This information should establish the definition of a “constitutional right.”

Today, the notion of a “constitutional right” is routinely misused. Technically, there are no “constitutional rights.” The Constitution merely protects those rights which have always existed and will continue to exist without any of the American founding documents.

However, in our context, we can assume that when someone claims a “constitutional right,” he or she is noting that the Constitution restricts infringement on the free exercise of some activity.

This is what pro-choice advocates mean when they argue for a constitutional right to abortion.

The Role of the Judge in Our System of Government

In the United States, judges have the power of “judicial review.”

This was determined in one of the first noteworthy cases of the newly-established Supreme Court of the United States: Marbury v. Madison. This is the primary “check” against the legislative branch that the judicial branch possesses in its arsenal.

In the system of English Common Law—from which most of the United States Constitution is derived—much of the constitution was unwritten. Indeed, judicial opinions are an exception. The United States Constitution was put in writing to prevent it from becoming adrift over the years.

Judges have the task of evaluating the laws passed by the legislature and the enforcement of those laws by the executive to determine if they conflict with the Constitution—the supreme law of the land. Simply put, the Constitution is a list of rules for government to follow, not for the people to follow.

Judges ought to be guardians, ensuring that the government stays within its assigned duties and enumerated powers and does not deprive any citizen of rights without just cause and due process.

lady justice

The Division

So, is abortion a constitutional right? There are two possible answers to this question. Either the answer must be that there is a right to abortion protected by the Constitution, or that the framers rejected abortion and the Constitution’s very wording makes abortion illegal. If the latter is true, the state must uphold that truth or collapse under its own illegitimacy.

There is no neutral position. The Constitution is not silent on the issue of abortion, even though it never explicitly utilizes that term. The text of the and context of the United States Constitution disallows abortion altogether.

Abortion is not a right. On the contrary, the primary right enjoyed by people made in God’s image is the right to life.

Abortion is a direct violation of the right to life.

The Rights of Man

During the Enlightenment—which was a major influence on the development of the Constitution—philosophers dedicated much ink to the question of the origin of the rights of man.

Since most of those philosophers were educated in a Christian society, they maintained a “theistic” worldview. Some of them were not Christians, but they all acknowledged the existence of a Creator God. It was relatively simple to trace the rights of man back to the God who made man in His image and imbued him with special dignity.

The Enlightenment also brought many erroneous attempts to find a source for the rights of man outside of God. The most common option was the “laws of nature,” and the language of “natural law” became common within the educated classes at the time.

Most honest philosophers who were writing in those days acknowledged the source of natural law; often, the notion of “the laws of nature and nature’s God” was seen in the essays of the day.

It is impossible to account for any version of moral or legal entitlement without a moral God to define what is lawful. This is, indeed, the “home turf” of Christianity. God is immutable, and He has given us laws and moral guidance. A study of the Scriptures reveals that God is the source and defender of all human rights.

There is a right to life because it is unlawful to take life without cause—only God can define the justified taking of life. There is a right to property because God prohibits coveting and theft. There is a right to pursue happiness because God has revealed Himself to His creation and sent His Son to die and reconcile sinners to himself.

Rights Cannot Be Accounted for without God

Without a moral God to whom human beings are accountable, the idea of a “right” makes no rational sense.

When trying to answer questions about morality in debate, atheists often fall back on the idea that anything is moral as long as it does not infringe on the rights of other people. This standard is libertine, but it is still a standard. Where did this standard come from? Why should the rights of others stop anyone from doing anything?

Indeed, this standard would justify the outlawing of abortion, which evidently tramples the rights of the unborn. Many modern atheists have surrendered this approach; some have admitted that nothing matters in their worldview and that no morality should exist under their framework. While this view is philosophically consistent, it is also horrifying.

Rights are Enumerated by the Word of God

The rights of the first ten amendments recognize a biblical worldview as the basis for which rights are retained by the people.

While the founders would have readily acknowledged the eternal consequences of certain moral decisions, they adopted the position known as “classical liberalism.” They believed that the state was improperly suited to punish certain private sins.

The founders made it a law that Congress cannot establish a religion by law. The founders were overwhelmingly Christians, but they did not make a law that Christianity must be the religion of the whole nation. They recognized that it is not the government’s role to mandate religion, as the nation from which their ancestors fled attempted with the Anglican faith.

How did the founders receive this idea? The Bible clearly teaches that Christianity is the only way to God. To put it directly, in the eyes of the government, a man has the right to choose hell. A man’s society may shun him for bad behavior, his family may call him to repentance, or his church may put him under discipline, but his government is not in the business of telling him how to worship.

Why? Because it is clear from the Bible that many men do choose to die in their sin and worship idols, which the Lord God permits them to do until their deaths. This implies a “right” of a person to worship however he or she wants. They will, however, have to pay the consequences to the eternal Judge—not the state judge, but the final Judge.

New England Style Church
The Bible Defines ‘Man’

The “rights of man” are the rights enjoyed by all members of the human family, not merely males.

What, then, is a “person”?

Christians have always opposed abortion and infanticide. The primary grounds upon which this opposition has been based is the belief that all human life has intrinsic value to God. We know this most fundamentally because he sent His son Jesus to die for humans.

Jesus was conceived as an unborn baby and was born of a virgin. He was God incarnate from the moment of conception. By wrapping Himself in flesh, Jesus declared the dignity of the human person.

God knows babies from their mothers’ wombs. We acknowledge the logical reality—confirmed by the biblical creation narrative—that all creatures reproduce after their own kind. Human beings beget more human beings.

A skilled ornithologist would likely be able to identify a mysterious egg according to its species after careful study. The egg contains the offspring of the bird; it is a part of that species. Human fetuses are also human beings; they are part of the human species.

Roe v. Wade: Is abortion a constitutional right?

In 1969, Norma McCorvey conceived after having consensual sex. She was a Texas resident; however, Texas law banned elective abortion procedures except to protect the life of the mother.

McCorvey attempted to acquire an abortion by lying about being raped, believing that in such a case she would be granted an exception to the laws prohibiting abortion. She found lawyers who sued Henry Wade, the Dallas district attorney.

McCorvey was given the pseudonym of “Jane Roe” to protect her privacy—in fact, a similar and concurrent abortion decision case from Georgia, Doe v. Bolton, had already made use of the name “Jane Doe” for the same reason.

McCorvey’s case advanced to the Supreme Court in 1971. After hearing the arguments from McCorvey’s lawyers and from Jay Floyd, who represented Texas, the Court’s nine members ruled 7-2 in favor of Roe, striking down the Texas abortion law.

The Court had invented a right to abortion in Roe v. Wade, which is held in religious reverence by the pro-choice community to this day. The majority opinion of the Supreme Court was penned by Harry Blackmun, which was based upon the right to privacy, refusal to define life, and the “state’s interests.”

Supreme Court
The Right of Privacy

The citizens’ right to privacy can be reasonably inferred by the Third Amendment, Fourth Amendment, and Fifth Amendment. These amendments acknowledge previous insufferable outrages committed by the British government against the colonists before independence was attained.

Roe v. Wade is one of the first cases in American history under which the Court explicitly acknowledged that a right to privacy can be found in the Constitution. Justice Blackmun’s decision in Roe v. Wade primarily invokes the Ninth Amendment and the Fourteenth Amendment.

The Ninth Amendment primarily exists as a catch-all implying that the Bill of Rights does not contain all possible rights that the people may have. Justice Blackmun took this amendment to state that “reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (Roe, 410 U.S. at 153).

Justice Blackmun also used the Fourteenth Amendment to imply that a woman’s right to privacy somehow implies a right to terminate a pregnancy.

Oddly, justification for the right to privacy regarded the issue of mental health and vague allusions to psychological distress “for all concerned” if a woman is not permitted to get an abortion when she wants. Justice Blackmun leaned heavily on the Fourteenth Amendment to establish the idea of abortion as protected under a right to privacy.

The dissenting opinion in Roe v. Wade was written by William Rehnquist, who noted that at the time of the passage of the Fourteenth Amendment following the civil war, the idea of protecting abortion would have been completely foreign to the drafters of the amendment since there were dozens of states with bans on abortion—many with exceptions in place to protect the life of the mother—already in the law. At the time, no conflict between the Fourteenth Amendment and the abortion laws in existence was perceived.

Because the majority of Justices had difficulty gathering consensus about which part of the Constitution implied a right to privacy and subsequently that the right to privacy implied a right to abortion, they eventually ceased trying to precisely anchor the right in any particular place.

The Supreme Court also found that since the right to have an abortion is implied, a woman’s right to choose cannot be infringed because of the due process clause found in the Fourteenth Amendment.

The Definition of Life

One of the more obvious failures of Justice Blackmun’s majority opinion in Roe v. Wade was his outright refusal to wrestle with the legal definition of life.

He argued that since doctors, philosophers, and theologians disagree on the topic, the judiciary is absolved of any responsibility of determining when a fetus becomes a person. Jay Floyd—who delivered the oral arguments in defense of the Texas statute—argued that life begins at conception and therefore fetuses have rights that must be protected by the Court.

The Court based its opinion on when life begins by using the trimester framework. The Court’s findings amount to a determination that a woman has a right to abortion which is mostly unrestricted in the first trimester, regulated for the health of the woman in the second trimester, and able to be banned or heavily regulated in the third trimester.

The ruling, therefore, defines life as beginning in the third trimester. They chose the third trimester because that was the earliest that a fetus was able to survive outside of the mother’s body. This is now the de jure definition of life.

Modern abortion debates still invoke the Supreme Court’s definition of life as decided in Roe v Wade. Arguments on the topic continue to appeal to viability, undue burden, women’s rights, and reproductive health.

In other words, the debate is anchored in the “mother-centric” view of pregnancy and childbirth. It does not acknowledge that there are, at the very least, two distinct people affected by abortion.

The State Interest

Justice Harry Blackmun conceded that the woman’s right to choose abortion was not unrestricted. Because of the reliance upon the trimester framework to help solidify the practical implications of their decision, the Supreme Court found that the right to abortion must be balanced with the state interest in protecting women’s reproductive health and the state’s interest in protecting “potential life.”

For this reason, states and localities continue to draft legislation that reduces abortion access. Planned Parenthood v. Casey was another Supreme Court case that sought to clarify the abortion issue. The biggest addition to the debate was the shift to the standard for judging laws based on the idea of “undue burden.”

No law could be enacted that placed an undue burden on the right of a mother to choose to abort her child. This devastated state laws that sought to place barriers in the way of mothers easily electing to abort their children on moral grounds.

Planned parenthood

The people of the United States feel differently about different types of abortions—a troubling reality because it reveals that the faulty definition of life-based on the “viability” test has captured many Americans’ definitions of what it means to be a human being.

However, this also indicates that fewer people generally support more extreme abortion positions. Broadly speaking, the United States population opposes abortion.

Yet, many are more comfortable with abortifacient drugs than with partial-birth abortion. The closer a baby is to full term, the more difficult it becomes for the general population to support abortion.

Roe v. Wade receives the most press because it opened the door to abortion on a wide scale; however, the case of Gonzalez v. Carhart upheld the federal law prohibiting partial-birth abortions. In this case, the Supreme Court used Blackmun’s own opinion to deny the right to partial-birth abortion, because Blackmun emphasized the state’s interest in protecting fetal life.

Partial-birth abortion destroys a viable baby. This is allegedly balanced against the threat to the mother’s reproductive health and the standard of not putting an “undue burden” on abortion access.

Medical testimony at the time was inconsistent, and the Court found that it had no grounds to throw out Congress’s opinion that partial-birth abortion was never necessary to save a mother’s life and that access to it can be regulated by the legislative branch.

Missing from this decision, however, was the acknowledgment of a baby’s humanity short of the “viability” standard, which stubbornly lingers in legal decisions.

Ultrasound

In any ruling of the Supreme Court, Justices are evaluating whether laws enacted by Congress are valid under the United States Constitution. The largest problem with all of the Supreme Court’s decisions regarding abortion is the categorical denial of the most fundamental right of all—the right to life.

Since the Court refused to acknowledge the humanity of a baby in the womb, they have no foundation upon which to judge the issue at other points. If these questions were raised about a mother’s right to choose to murder her born children, the Court would not have ruled differently; instead, they would have outright denied certiorari and refused to hear the case.

Murder is already outlawed; the Court does not need to rule on this issue.

This is denying the obvious fact that the founders—most of whom were Christians—would have acknowledged the biblical definition of life. From the first moment of conception, the child possesses all of the rights protected by the Constitution—including the Fourteenth Amendment, which declares that all people have the right to their lives and liberty unless, through due process, those rights are abridged for a justifiable cause. Blackmun quoting the Fourteenth Amendment is therefore deeply ironic.

Reproductive Healthcare is Not a Right

Previously, the difference between a negative right and a positive right was demonstrated. The opinions of the Supreme Court in any landmark abortion decision will contain language such as: “a woman’s right to seek an abortion.”

The word seek is important because the woman does not have a right to get an abortion; in the Court’s understanding, she instead has the right to find an abortion practitioner and pay them for the service.

One of the tactics of the pro-choice camp is to convince the population of their legitimacy. Planned Parenthood derives the majority of its income from abortion procedures. Planned Parenthood also distributes contraceptives and performs some legitimate clinical functions, but their business would collapse if the law recognized the right to life for babies in the womb and limited abortion access accordingly.

While the pro-choice side of the debate has managed under the right to seek an abortion, they have been pressing further and further toward getting rid of the seek distinction.Planned Parenthood and pro-choice lobbyists continue to fight for more taxpayer-funded abortion procedures.

They continuously try to shift the context of the debate to the argument that women do not have the right to seek an abortion or have abortion access, but the right to have an abortion on demand. If women have the right to an abortion, the procedure must be provided by someone.

This argument is similar to the idea that all children have a “right” to education. Based on the “right to education,” the government was mandated to create, fund, and enforce compulsory schooling laws.

Since enslaving obstetricians and forcing them to perform the operation is not yet fashionable, the easiest way is to pressure Congress to subsidize their operations with taxpayer money.

If abortion is a right, then not only will tax money be used to fund the murder of children but any product or service could be labeled as a “right.” In 1980, a pro-life Senator added an amendment to a bill that prohibited the use of tax dollars on abortions for anyone who received healthcare from federal funds, including Medicare and Medicaid recipients.

The so-called “Hyde Amendment” was a major step in the right direction of stopping the use of tax dollars from pro-life Americans to kill a baby.

Roe v. Wade is Rotten to the Core

The truth is that Roe v. Wade is a terrible legal decision. Even abortion apologists agree that the Justices who wrote the majority opinions were inconsistent, illogical, and imbued with a streak of judicial activism.

Roe v. Wade was a major backslide for a nation that had seemed to be recovering some of its truly liberal identity. Civil rights were making real headway at this time in history; universal suffrage was the law of the land; slavery was an institution of the past.

In one decision handed down by the Supreme Court, the United States fell back into the stone age on human rights. Subsequent decisions by the Court have only confirmed that the American people are utterly lost in the area of morality.

If babies have no right to life, no one does. On what basis should they? This is clearly at odds with the constitution as it was originally written, as well as with its subsequent amendments. The Court invented a new constitutional right to abortion access, but they denied the first constitutional right to life.

The founders of the United States did not include the concept of abortion explicitly in the Constitution because it was universally recognized as a moral evil that can and should be outlawed. It was such a heinous crime that it was unmentionable in polite society. In the Constitution, murder of those who have been born is not prohibited either.

It is precisely because Roe v. Wade is so poorly argued that the pro-choice community is petrified that it will be overturned. Vehement opposition to new Supreme Court appointees nominated by former President Donald Trump is primarily fueled by this fear.

The current Court has not been as conservative as some thought, but it is the first time in many years that the majority are considered conservative, were appointed by Republican Presidents, and were confirmed by a Republican Senate. Time will tell if the current Court will choose to overturn Roe v. Wade.

End Abortion Now

End Abortion Now believes that abortion should be ended and outlawed immediately and without any exceptions. Laws commonly have exceptions for cases of rape, incest, or a maternal health emergency.

These exceptions should not be permitted. Science, historical data, and medical evidence do not support exceptions for the mother’s health. Logic and morality do not support the death of a baby because the mother was abused.

People holding "babies are still murdered here" signs in front of the capital

Our prayer is that Almighty God—who creates every baby—will hasten the day when abortion is never again performed by anyone.

If you are a person who found this article seeking information about Roe v. Wade or abortion from a legal perspective, I hope you have helpful information to consider. If you are a woman who needs help and is considering abortion, please contact End Abortion Now and ask for assistance. We love you because God first loved us.

If you enjoyed this article, check out 10 answers to common pro-choice objections.