In late February, the South Dakota legislature approved the first complete abortion ban since Roe v. Wade was decided in 1973. South Dakota Governor Mike Rounds, who is pro-life, has announced that he will sign the legislation barring any technical defects. The law prohibits abortion in all situations, except when deemed necessary to save the life of the mother.
Of course, the ban will almost certainly be challenged in court, most likely by Planned Parenthood. If it is, a judge will probably suspend the ban, so it will not go into effect unless South Dakota appeals the case all the way to the Supreme Court and wins.
With newly confirmed Justices John Roberts and Samuel Alito on the Supreme Court, many are hopeful that Roe v. Wade will finally be reversed. Both justices appeared to be personally pro-life during their confirmation hearings. In addition, Roberts stated in a legal brief for former President George H.W. Bush that “we continue to believe that Roe v. Wade was wrongly decided and should be overturned,” and Alito stated in 1985 that he was “particularly proud of [his] contributions in recent cases in which the government has argued…that the Constitution does not protect a right to abortion.”
Pro-lifers must not, however, put too much faith in the current Supreme Court overturning Roe v. Wade. Roberts did, after all, pledge to uphold Roe as the “settled law of the land” in his confirmation hearings for the District of Columbia Circuit Court of Appeals. Even Alito, who is generally considered more conservative than Roberts, ruled in Planned Parenthood v. Farmer that New Jersey’s ban on partial-birth abortion was unconstitutional. These decisions bring into question Roberts’ and Alito’s commitment to ending abortion.
Even if Roberts and Alito merely supported abortion because they believed that lower courts must follow Supreme Court precedent, and begin voting against abortion as Supreme Court justices, there is still no guarantee that Roe will be overturned. The Court ruled 5-4 in Planned Parenthood v. Casey to uphold Roe. Among the four dissenting justices, only two – Clarence Thomas and Antonin Scalia – are still on the Court. With the addition of Roberts and Alito, there would be four votes in favor of reversing Roe. That leaves five pro-abortion votes: Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter, and John Paul Stevens, resulting in a 5-4 majority in favor of abortion.
It is for this very reason that America can no longer rely on the Supreme Court to end abortion. Contrary to popular belief, the Founding Fathers never intended for the Supreme Court to be the final arbiter of such issues – Thomas Jefferson once warned: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislative and Executive also in their spheres, would make the judiciary a despotic branch.” Rather, they intended for all three branches of government to play a coequal role in protecting the constitutional rights of American citizens. The Supreme Court has utterly failed to perform its obligation to secure the constitutional rights of unborn children, so America must look to the other two branches of the federal government, and to state and local governments, to do their part.
A careful reading of the Constitution reveals that it does, indeed, require that unborn children be accorded the same legal protections as all other human beings. The Fifth Amendment states that “No person shall…be deprived of life, liberty, or property without due process of law.” The prohibition against depriving an individual of the right to life extends to the unborn, because under English common law – the legal system on which the Constitution is based – fetuses were legally recognized as persons. Moreover, the Fourteenth Amendment provides that “No state shall… 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.” Any state that permits abortion denies unborn children the equal protection of the right to life.
Since the Constitution protects the right to life for the unborn, abortion may not be made legal by any branch – legislative, executive, or judicial – of federal, state, or local government. Government officials at all levels must do everything in their power to end the disgraceful practice. For starters, President Bush, as head of the executive branch, should direct Attorney General Alberto Gonzales to end enforcement of Roe v. Wade, allowing states to revive their criminal statutes against abortion. Congress, likewise, must exercise its authority – outlined in Article III, Section 2 of the Constitution – to strip from federal courts’ jurisdiction cases concerning state laws restricting or prohibiting abortion, so states like South Dakota cannot be sued over their abortion bans. Finally, more states should follow South Dakota’s lead and enact their own abortion bans, invoking their right to nullify unconstitutional federal court decisions.
Over the past thirty-three years, the nation’s leaders have stood idly by while millions of unborn children have been slaughtered in the womb. Fortunately, South Dakotans have taken one vital step to protect the God-given, inalienable right to life of all human beings. It is now time for the rest of the nation to ask itself whether it will do the same, or do nothing and let the evil of abortion persist.
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