COLUMN: Abortion debate is about judicial activism
With the anniversary of Roe v. Wade recently passing us, both sides of the abortion argument have been renewing their political vigor and coming out waving rhetorical banners. Both sides misguide their efforts, however, and miss the fundamental importance of the debate over Roe v. Wade. The debate is not whether abortion is right or wrong, it is over whether the right to privacy is specifically left out of the Constitution by the framers for the states and the people to define on an individual basis.
When Roe v. Wade came to the court in 1973, Texas was one of many states that outlawed abortion. However, there were other states in which a legal abortion could be obtained. These abortions were not backyard “hanger” abortions either; they were performed by licensed physicians and were done in safe, sanitary clinics. What the court did when it decided Roe v. Wade was jump the preestablished doctrine of whether not this issue was a political question and engage in social welfare legislation.
Roe was not the first case in which the court read a right of privacy into the Constitution; Griswold v. Connecticut is one of many good examples that paved the way for the ruling in Roe. Try as you might, the right to privacy is not enumerated in the Constitution. It is not there. Even the court could not find it and had to rely on the idea that “a penumbral right of privacy emanates from particular guarantees found in the First, Third, Fourth and Ninth amendments.” In other words, the court reasoned the founders did not include the right but the certainly must have simply forgotten to do so. The right to privacy in this context is made up, a social phenomena of the past century.
What the court forgot to do was read a little further, specifically in the Tenth amendment, which reserved those rights not specifically enumerated in the Constitution or the Bill of Rights “nor prohibited by it to the States, [as] reserved to the States respectively, or to the people.” The framers did not forget to include any right in the Constitution, rather, they left these rights to be determined by the states and their residents in a political setting.
Thus the state has the right to decide if abortion should be legal. This evidently is the realm where the debate over whether or not abortion should be legal, this is the political question doctrine. The Constitution set up a framework in which issues such as these had a venue for educated discussion and resolution, state legislatures. As long as the citizens of these states were guaranteed their due process (equal representation through a voting process) there was no Constitutional right that could be properly asserted to trump this political process.
The current debate surrounding abortion is about judicial activism – judges legislating from the bench. In this case, as in most others of political significance, the judges on the bench practice moral relativism. They decided what the rule should be and reasoned backward, bending the Constitution to their personal desires. In this case they felt that the right to privacy should have been included in the Constitution and proceeded to create a Constitutional remedy, they arbitrarily placed this ill conceived right in the First, Third, Fourth and Ninth amendments fundamentally altering the Constitution and undermining the rule of law.
The obvious problem is the kind of precedent this creates (even though this was not the first, but one of many, many cases in which this type of flawed thinking was employed), if a judge simply can not find a right to whatever is politically popular at intellectual establishments at the time, they can reason backward and create the right out of thin air, a true magic trick. We must save the rule of law and our liberty, recognize judicial activism for what it is, unconstitutional.
Jared Scott Westbroek is a senior majoring in law and constitutional studies. Comments can be sent to jwestbroek@cc.usu.edu.