Roe v. Wade & the 10th Amendment


The most controversial of the civil rights cases is undoubtedly Roe v. Wade, 410 U.S. 113 (1973), which has been applied in a way that effectively establishes an unwritten constitutional right to have an abortion, though the opinion of Roe itself made no such assertion directly. Roe represents a twofold failure of judicial social engineering, since it (1) applied a uniform legal solution over all the states on a highly contentious issue that opens deep moral, religious, and philosophical fissures, and (2) was poorly reasoned and not grounded in law, giving it little intellectual legitimacy. We are only going to consider the second aspect of Roe, its failing as a legal argument. Roe’s intellectual inadequacies are well known and criticized among legal scholars, even those who personally favor a right to abortion. These criticisms have not reached a larger audience, however, due to the superficial coverage of legal matters by the mass media. Accordingly, we need to clear some common misconceptions before examining the opinion of Roe itself, which is often cited but seldom read.

First of all, Roe v. Wade did not legalize abortion. Before Roe, abortion on demand was already legal in several states, while it was available under restricted circumstances in many others, and all states recognized an exception to save the life of the mother. Abortion statutes gradually became liberalized in more states as social attitudes changed. Roe short-circuited this development by radically restricting the states’ right to regulate abortion, and effectively mandating abortion on demand for the first two trimesters. Overturning Roe would not make abortion illegal anywhere, but it would allow each state to decide for itself under what circumstances abortion is permissible. A legislative solution prevails in nearly all democratic nations, most of which have achieved a compromise reflecting the values of a pluralistic society.

Roe imposed one extreme view of the abortion issue upon everyone in the U.S., disenfranchising half the nation and radicalizing social and religious conservatives. A nation without Roe would not only be prudent, but it would also be lawful, as the U.S. Constitution says nothing about abortion, entrusting the sovereign states and their constituents to regulate this issue just as they are trusted to legislate the serious matters of murder, manslaughter, and larceny, and to set penalties for each. It is difficult to coherently justify the judicial overreaching of Roe without allowing the federal courts to set policy for every other aspect of criminal law.

Since advocates of legalized abortion have misleadingly identified upholding Roe with legalizing abortion, the basic parameters of the debate are not understood by most Americans. A judicial nominee is vilified for daring to speak disparagingly of Roe, as though this were equivalent to wishing to criminalize abortion. Overturning Roe would not criminalize abortion, unless duly elected state legislatures so chose, and even then they could only do so in a manner that respected constitutional rights. Requiring a judicial nominee to praise Roe is practically requiring him to have no intellectual integrity. It is nearly impossible to honestly examine the decision without finding serious legal and logical flaws, so having a pro-Roe litmus test practically guarantees intellectual and moral mediocrity on the nation’s highest court. Most “pro-choice” politicians fail to realize this, as they have internalized the false equation between upholding Roe and legalizing abortion.

… Roe and all subsequent abortion cases have established a culture where the Supreme Court, rather than the legislature, dictates the content of abortion legislation, often in painstaking detail. Though Roe itself had little regard for the text of the Constitution and effectively ignored a century of prior jurisprudence, Roe’s defenders have solemnly appealed to the principle of stare decisis to preserve Roe as an established precedent. Revolutionaries despise traditional authority until they gain power, at which point authority again becomes sacred. Since the legal arguments ofRoe are virtually nonexistent, it can only be defended by the argument from authority, stare decisis, a principle which Roe itself thoroughly repudiated.


The decision in Roe v. Wade was judicial activism. Whether abortion should be legal or not, there is no “right to privacy” embedded in the Fourteenth Amendment, nor is there anything that could be reasonably interpreted to render anti-abortion laws unconstitutional. Therefore, according to the Tenth Amendment, Roe v. Wade should be overturned, and legalization of abortion should be a state issue.

 In the 7-2 majority decision in 1973, the Supreme Court wrote “the right of privacy … in the Fourteenth
Amendment’s concept of personal liberty and restrictions upon state actions … is broad enough to encompass a woman’s decision on whether or not to terminate her pregnancy.”

The cited section of the Fourteenth Amendment, Section I, says in relevant part that “[no] state shall deprive any person of life, liberty, and property without due process of law.” The Supreme Court asserted that this indicated a “right to privacy.” However, nowhere in that clause does it say anything of the sort. “Liberty” is a general term to indicate one’s freedom, not a term to indicate a freedom to do any specific activity, as the “right to privacy” is being used to mean. There is nothing in the Fourteenth Amendment or anywhere else in the Constitution that indicates these laws are unconstitutional. The Supreme Court’s assertion to the contrary is pure judicial activism.

Since the “right to privacy” does not actually exist in the Constitution, the Tenth Amendment protects the rights of states to pass laws banning abortion. This Amendment grants to the states any “powers not delegated to the United States by the Constitution, nor prohibited by it to the states.” Since, as established above, there is nothing in the Constitution concerning abortion or the alleged “right to privacy,” the regulation of abortion is a state issue.

Additionally, even if federal regulation of abortion is constitutional, judicial activism is not the right way to handle it. Federal programs like Social Security and the Department of Education have all been created by Congress, not the Supreme Court. If federal abortion regulation is constitutional, this is where it should originate. After Roe v. Wade is overturned, Congress could pass a law forcing all states to allow abortions. Most likely this new law would be challenged on the grounds that it violates the Tenth Amendment. The legal challenge would probably make it all the way to the Supreme Court. At that point, the Court would either decide that the law is unconstitutional, as I believe it would be, or constitutional, as my opponent believes.

However, the Roe v. Wade decision did not rule on any federal law, because there was none at the time. Instead, it invented logic that rendered a Texas state law unconstitutional. Even if federal regulation of abortion does not violate the Tenth Amendment, it should be handled not through judicial activism but through legislation. To create a new right to abortion through the Supreme Court, as opposed to through Congress, oversteps constitutional bounds, and it is time to reverse the 40-year-old decision.


On the purely legal points of the issue, even the other side admits that the pro-life cause has the momentum precisely because so many States have openly pro-life majorities in their legislatures and populations which identify themselves as increasingly pro-life. That’s great news for the cause, of course. However, the legal doctrine used in deciding Roe v. Wade, which essentially said that a right to privacy (words not found in the Constitution) existed and is guaranteed equal protection under the 14th Amendment, made the founders’ clear original intent, which was that matters not mentioned in the Constitution were to be left to the States or to the people, moot in the case of abortion. States could pass certain regulations on abortion but could not choose to outlaw the practice, even though neither abortion nor anything that could be remotely construed as pertaining to abortion is to be found in the U.S. Constitution. As long as this legal doctrine holds sway, the majority opinion won’t be able to change current law without Roe itself being overturned.


Most people do not really know what the Supreme Court decided on January 22, 1973. They assume that the Court made abortion legal in the first trimester of pregnancy only, and that it is subject to substantial limits and regulations today. You will be able to change minds when you inform them that neither of these assumptions is true.

The Supreme Court in Roe v. Wade did not create a limited right to abortion but a virtually unlimited right to abortion throughout pregnancy.

Here’s how: The case involved an 1854 Texas law prohibiting abortion except “for the purpose of saving the life of the mother.” The plaintiff, whose real name is Norma McCorvey, desired a purely elective abortion and filed suit claiming the Texas law deprived her of constitutional rights.

Seven members of the Supreme Court agreed. While admitting that abortion is not in the text of the Constitution, they nevertheless ruled that a right to abortion was part of an implied “right to privacy” that the Court had fashioned in previous rulings regarding contraception regulations. (“Privacy” is not in the text of the Constitution either.) They also ruled that the word “person” in the Constitution did not include a fetus.

For a debate on abortion policy, the most important part of the ruling to understand is the new “law” it established, and here is a description of it that you should commit to memory: The Court ruled that abortion must be permitted for any reason a woman chooses until the child becomes viable; after viability, an abortion must still be permitted if an abortion doctor deems the abortion necessary to protect a woman’s “health,” defined by the Court in another ruling issued the same day as “all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient.”

In this way the Court created a right to abort a child at any time, even past the point of viability, for “emotional” reasons. Stated another way, the Supreme Court gave abortion doctors the power to override any abortion restriction merely by claiming that there are “emotional” reasons for the abortion. Abortion advocates want to hide this, of course, but liberal journalists such as David Savage of the Los Angeles Times have reported the truth about Roe, saying the Supreme Court created an “absolute right to abortion” under which “any abortion can be justified.”


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