In the cases of Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), the United States Supreme Court rendered ill-considered decisions that have polarized the United States electorate for half a century. They involved lazy, ill-conceived and hasty jurisprudence designed to address important moral questions through legal rather than philosophical or religious channels at a time when a national consensus had not been attained. The underlying moral and ethical issues have always remained unresolved and, perhaps, that is appropriate. To an objective and honest person, the concept of abortion would seem to involve irreconcilable issues, the right to life on the one hand, versus the right of women to make fundamental decisions involving their health and welfare on the other. A third element is rarely considered although it may be equally important, and that involves the right of a man to participate in a decision that materially impacts his financial and moral obligations. A critical element in all three is the concept of what constitutes a right in the first place, and a second related and more tangible issue involves the appropriate scope of governmental authority within the context of a constitutional system and in this case, specifically, the United States Constitution, as amended to date. A third element involves the concept of federalism in the United States context and a fourth, the doctrine of separation of powers.
The third, which is probably the best starting point for an analysis of the issues involved, would seem to turn on the usually ignored ninth and tenth amendments to the United States Constitution which provide as follows:
The Ninth Amendment says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the People”.
The Tenth 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 or to the People”.
The United States are an experiment in shared and fragmented sovereignty on both geographical and thematic bases with the principal role of the Constitution being identification of the frontiers of the complex jurisdictional boundaries thus created. In essence, all governmental power is retained by the People except such as is specifically allocated by them to the various states, and, of the power allocated by the People to the various states, such as is allocated by them to the federal government. The idea was that a competition among the various states for differing schemes of governance would identify those most beneficent and lead to their being adopted elsewhere, a process expected to be dynamic in order to deal with changing values and problems. It was an interesting, percolate from below, concept contrasting with the traditional perspective that government was imposed from above, either from deities or humans endowed for one reason or another, either individually or collectively, with sovereignty superior in authority to individual autonomy. The concept has never really worked, although politicians, lawyers, journalists and philosophers use tortured reasoning and rhetoric to make it seem otherwise, in order to impose their values over those which we, as a collective, are willing to accept, or might be willing to reject, but for compulsive coercion from those who deem themselves more morally and ethically suited to make our decisions, or, just much more powerful.
In the system of governance adopted in the Constitution but never really implemented, if social norms were not addressed in the federal Constitution, they were beyond the federal government’s power to regulate, but the federal Constitution could be amended by three quarters of the states in order to devolve additional powers, powers within the states’ competence, to the federal government, just as state constitutions could be amended by the People, to devolve additional powers to the states.
The fourth factor referenced above (important only because we as a People purportedly decided that it was), involved division of legislative, executive and judicial powers among separate branches based on the determination that government efficiency was much less important than preservation of the autonomy that liberty guaranteed. As in the former case, it is a theory that has never really worked as the allocation of power in the Constitution itself violated the doctrine through the contemporaneous contrary doctrine of checks and balances. The judiciary further eroded separation of powers when, in the Supreme Court case of Marbury versus Madison, it usurped the power of constitutional control (in a decision as unartfully reasoned as were those in Roe v. Wade, and Planned Parenthood v. Casey). That decision eviscerated the concept of democracy, concurrently rendering the Constitution virtually moot, as the Constitution, and hence the entire artfully crafted scheme of governance designed for the allocation of governmental authority among the United States, came to be whatever, at any given moment, a majority of the unelected and life tenured members of the Supreme Court thought it should be, regardless of the perception of the Congress, or the President, or the People, or all three. And thus we inevitably faced situations such as those decided in Roe v. Wade, and Planned Parenthood v. Casey, as well as that now decided in Dobbs v. Jackson Women’s Health Organization.
But, for the sake of argument, assuming the schemes of governance reflected in the Constitution, as amended, were to apply, what would the correct decision in Dobbs v. Jackson Women’s Health Organization be? Well, first, we need to clarify, correct in what context because, if the answer is in a legal and constitutional context, the answer might be different than if the context were socio-moral, the latter being the context in which policies should be designed and implemented. But perhaps a more important question would be, is there a rational means to help resolve the quandary in which this issue has placed us.
In the first instance, the decision in Dobbs v. Jackson Women’s Health Organization seems sound. There is no debate that neither the Constitution nor the 14th amendment to the Constitution nor any other amendment thereto in any manner refers to abortion in any manner, thus, at best, it is an issue reserved to the states, assuming that the People in any state have conferred such issue for determination at a state level, and if not, it is left to the individual consciences of the people involved. That is what federalism is all about. In the latter case, no state in which the power to regulate abortion has not been constitutionally delegated by the People to that state would seem to have authority to prohibit it. An interesting logical situation which the Supreme Court, were logic an important element in its decisions, might have considered way back in 1972. Thus, it could be argued that while there is no right to abort, states have no power to regulate the issue, absent specific state constitutional authorization.
In the absence of a nationwide constitutional “right” vested in women to an abortion, proponents could develop such a right, even if none now exists, by first creating it at a state constitutional levels which might thereafter permit the states, by a three fourths majority, to amend the federal Constitution to incorporate such right there. Case closed. In such a context, perhaps serious discussions and research could precede such policy determinations leading to a reasonable balancing of interests embodied in a rational policy that could take into account the rights of unborn children, the rights of women, but also the rights of men (who might be forced to support a child they do not want). Conversely, perhaps, in states that decline to accept a woman’s right to abort at will, policies might also consider what role such state should bear with respect to the financial and custodial responsibility for the resulting progeny. Those kinds of decisions are not, however, the province of the judiciary but rather, of the electorate and of its legislatures.
Dobbs v. Jackson Women’s Health Organization should not be the final word on point. The issue requires rational, not just legalistic resolution, and the citizenry has the constitutional tools at state and federal levels to meet that responsibility. Unfortunately, the issue has, during the past half century, as in the case of the purported right to bear arms, been too appetizing a political tool for political fund raising and appeals to emotion rather than good sense and logic. Hence it is more politically pragmatic to leave the issue unresolved regardless of how much suffering it causes children and women and men; and how much it polarizes our society.
Some concluding thoughts:
The issue of abortion is too serious an issue to ignore or to leave to unelected, all too frequently jaded elites, responsible to no one but their whims of the moment. Perhaps the answer ought to follow the federalist ideal, with different states having different rules, and people free to live in those states that best reflect their values, but perhaps it really may prove, after serious deliberation and serious, well thought out and good faith proposals, to rise to something involving rights, either for the unborn, for women, and even, perhaps, for men.
Things to consider as the United States is once again thrown into politically opportunistic bedlam.
© Guillermo Calvo Mahé; Manizales, 2022; all rights reserved. Please feel free to share with appropriate attribution.
Guillermo (“Bill”) Calvo Mahé (a sometime poet) is a writer, political commentator and academic currently residing in the Republic of Colombia (although he has primarily lived in the United States of America of which he is also a citizen). Until 2017 he chaired the political science, government and international relations programs at the Universidad Autónoma de Manizales. He has academic degrees in political science (the Citadel), law (St. John’s University), international legal studies (New York University) and translation and linguistic studies (the University of Florida’s Center for Latin American Studies). He can be contacted at email@example.com and much of his writing is available through his blog at https://guillermocalvo.com/.