By James D. Agresti
December 6, 2011
Writing in the NJ Star Ledger, columnist Paul Mulshine asserts:
Any federal law banning abortion would be rooted in the same section of the Constitution now being challenged by conservatives in the suits against Obamacare: the Interstate Commerce Clause. Conservatives argue the original meaning of that clause permits Congress only to facilitate interstate commerce, not restrict it. If that’s true of Obamacare, then it’s true of abortion.
In fact, the Bill of Rights and the Fourteenth Amendment of the Constitution—which are both independent of the Interstate Commerce Clause—may entail and affirmatively require federal involvement in the issue of abortion.
The Fifth Amendment of the Constitution, which is part of the Bill of Rights, declares that “No person shall be … deprived of life, liberty, or property, without due process of law.” Likewise, the Fourteenth Amendment made this portion of the Fifth Amendment applicable to the states by explicitly affirming, “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.”
Constitutionally, the issue of abortion can be boiled down to whether or not the unborn fall under the Constitution’s definition of “any person.” During the oral arguments for Roe v Wade, Henry Wade, the attorney responsible for enforcing Texas’ abortion law, cited a fact that bears upon this question.
Wade argued that the only rational way to understand what the Constitution means by the word “person” was to go to “the teachings at the time the Constitution was framed.” Doing this, he quoted William Blackstone, who is described in Simon & Shuster’s New Millennium Encyclopedia as a “British jurist and legal scholar, whose work Commentaries on the Laws of England was used for more than a century as the foundation of all legal education in Great Britain and the U.S.” As Wade noted, in this work, Blackstone wrote that life is a “right” that “is inherent by nature in every individual, and exists even before the child is born.”
This fact does not completely settle the issue, but it does show that an originalist understanding of the Constitution is compatible with federal involvement in the issue of abortion. Furthermore, it implies that the Fifth and Fourteenth Amendments may actually compel federal involvement in this matter, just as they do in cases where anyone in this country is deprived of the individual liberties and rights recognized in the Bill of Rights.
For facts that bear upon the issue of when life begins, see Just Facts’ research on the issue of abortion, particularly the sections on Science and the Constitution. For critical insights about the Fourteenth Amendment and its purposes, listen to “Constricting the Bill of Rights” on Just Facts Radio.