Blog: Why I Think Abortion Should be Banned – Part 3: The Legality of Abortion

One of the many things that pro-abortion activists like to throw around is the idea that abortion is a constitutional right and to take it away (such as in the overturning of Roe v. Wade) is unconstitutional. The most common amendment that the pro-abortion side cites (which was used in 1973 to pass Roe v. Wade into law) is the 14th Amendment’s Due Process Clause, which states that no state shall “deprive any person of life, liberty, or property, without due process of law.” They have also cited the 9th Amendment which states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” to suggest that unlisted rights—like reproductive choice—should still be protected. Now, though I’m not a lawyer or legal expert by any stretch of the imagination, I have read the Constitution and the Bill of Rights and nowhere can they be truly used to defend killing your baby. So, let’s dive into what the Constitution actually says and let’s also take a look at how Roe v. Wade was actually extremely unconstitutional.

#1: The 14th Amendment

Since this is the most commonly cited amendment, I figured we should start here. Section 1 of the 14th Amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While the fetus has not been born yet, if they are alive in the womb (which I have already written an entire post about how they are alive in the womb), then isn’t killing them in the womb depriving them of life and liberty without due process of the law? Aren’t these states that still allow abortion abridging the privileges and immunities of citizens of the United States? Sure, I suppose that you could argue that since they haven’t been born yet, these babies are not subject to the jurisdiction of the United States, however, the 14th Amendment was written in 1866. The scientific advancements that have allowed us to see inside the womb during pregnancy that have shown us how a baby grows and develops had not been developed yet. I believe that had that technology been around during the writing of the 14th, the unborn would’ve been included under this section.

Moreover, the 14th Amendment was never written to provide protections for women seeking abortions. It was instead written to primarily to provide protections to the newly emancipated slaves and secure them the rights of citizenship and equal rights. The only reason why we’re arguing over this Amendment in the abortion debate is because the language is so broad that it was originally easy for the Supreme Court to take it and run with it during Roe v. Wade.

#2: The 9th Amendment

The 9th Amendment states this:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Though the pro-abortion movement has used this one to try to defend their stance, the simple truth of the matter is that this amendment is too vague to be used for abortion. Not only that but given that abortion was illegal when it was written, it was – once again – never intended to defend abortion nor was it meant to allow courts to create new rights for people. Instead, it was meant to defend pre-existing common-law/state rights.

#3: How Roe v. Wade was Unconstitutional

Aside from the gross misuse of the 9th and 14th Amendments to defend abortion (something that people in the 1970s were still widely against), Roe v. Wade was unconstitutional under the 8th, 10th, and 14th Amendments. As I’ve pointed out earlier, the 14th Amendment says that “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” If the human fetus is alive, then it should count as a citizen of the United States and under the Constitution be protected by the same laws that people outside of the womb are protected by. It also means that if a child is killed without due process of the law, then that is illegal and is murder, and if the state facilitates that, then they are acting unconstitutionally.

Moreover, Roe v. Wade is unconstitutional under the 8th Amendment because the 8th Amendment expressly prohibits “cruel and unusual punishment.” If a fetus is a person (or a potential person) then under that amendment, abortion is cruel and unusual punishment for the simple crime of the baby just existing. Just look up how a baby in the 2nd or 3rd trimester is removed from the womb during an abortion and you’ll see my point. If any state allowed that to execute prisoners, there would be a massive public outcry. If most states have outlawed the use of the electric chair to execute murders since the advent of lethal injections, why then is abortion still allowed?

Lastly, Roe v. Wade was unconstitutional under the 10th Amendment because it was in violation of federalism. The 10th Amendment says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

By passing Roe v. Wade, the judiciary forced states to legalize abortion, not giving a crap what the states and the states’ inhabitants actually thought about abortion. It basically made it illegal to criminalize abortion, which was an example of government overreach. In the Dobbs case where Roe v. Wade was overturned, while women could still get abortions, Donald Trump did the constitutional thing by turning the rights to decide whether or not abortion was legal back over to the states, allowing them to come to their own decisions. That means that progress can still be made as pro-life organizations work to educate women about what actually happens, so we can hopefully create change in our judicial systems’ views on this horrible practice.

Until next time,

M.J.