Posts

Is abortion constitutional? Let’s ask the founders

Is abortion constitutional? The Supreme Court concluded in Roe v. Wade (1973) that an expectant mother has a “fundamental right to abortion.” According to Supreme Court logic, this right to abortion is protected under the penumbral right of privacy supposedly guaranteed by the Bill of Rights.

To see whether the Roe decision is an accurate interpretation of constitutional rights, it is important to understand the intentions of the authors of the Constitution. Did they advocate legal abortion protected by the Constitution?

One of the most authoritative sources for learning law during the founding era was William Blackstone’s Commentaries on the Laws of England. Blackstone, a distinguished English jurist, was so well-liked by the founding fathers that he was the second most frequently cited thinker in the American political writings of the founding era. American law students studied his work so religiously that Thomas Jefferson wrote to a friend that “Blackstone is to us what the Koran is to the Muslims.”

Blackstone affirmed in his Commentaries that an individual’s right to life is an “immediate gift of God.” This right to life is legally binding “as soon as an infant is able to stir in the mother’s womb.” Per Blackstone,

“For if a woman is quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.”

Interestingly, Blackstone also explains that fetuses “in the mother’s womb” are legally considered “to be born.” Thus, the law considered a fetus to be his or her own person, independent of the mother.

From these commentaries, the founding fathers learned that any abortion perpetrated after the stirring of an infant in the mother’s womb was a “heinous misdemeanor.”

American courts upheld this traditional common law approach in characterizing abortion as a misdemeanor. Founding father James Wilson, a signatory of the Declaration of Independence and original U.S. Supreme Court justice, taught his law students that,

“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”

Similarly, St. George Tucker, a Madison judicial appointee and professor of law at the College of William and Mary, explained in his celebrated legal treatise on American law that it is  “a great misprision [misdemeanor]” to “kill a child in its mother’s womb.”

Laws in American states criminalized abortion from the beginning. For example, Virginia law outlawed the practice of using “potion” to “unlawfully destroy the child within her [womb].” These laws were crafted by many of the same individuals who framed the Constitution.

It is therefore inconceivable that the framers intended constitutional protections for abortion as a “fundamental right.” Indeed, the framers believed the opposite. From their perspective, the unborn child has a fundamental right to life, a right that would be infringed by an abortion that ends his or her life.

A “fundamental right to abortion” does not exist in the Constitution or its amendments. It is the height of intellectual dishonesty to argue that the authors of the Constitution and its amendments intended to protect abortion under some vague and unwritten “right to privacy.” That so many courts and judges have for so long upheld a legal doctrine antagonistic to the Constitution reveals the rogue nature of the modern judiciary.


Blaine Conzatti is a columnist and research fellow at the Family Policy Institute of Washington. He can be reached at Blaine@FPIW.org.


 

Oregon Legislation Would Allow Nursing Homes to Starve Dementia Patients

Nora Harris, 64, is in an advanced stage of Alzheimer’s. Although she is conscious, she can no longer use utensils to eat and drink.

Under current Oregon state law, so long as Nora is conscious, her caretakers must offer her food and water and help her to eat and drink.

Bill Harris, Nora’s husband, believes that Nora would rather starve to death. He sued to stop the spoon-feeding last year but lost the case.

Oregon lawmakers are now considering legislation that would allow nursing homes and hospitals to starve and dehydrate patients like Nora.

Oregon Right to Life says SB494, which passed the Senate last week, “would allow the starving and dehydrating of patients who suffer from dementia or mental illness.” David Kilada, Oregon Right to Life’s political director, explained the legislation in a post on ORTL’s blog:

“SB 494 removes current safeguards which prohibit surrogates from withholding ordinary food and water from conscious patients with conditions that don’t allow them to make decisions about their own care. Currently, patients like Nora are given help with eating and drinking when they cannot do it themselves. This is not tube feeding or an IV—this is basic, non-medical care for conscious patients.

“The way these safeguards are removed is subtle. A cursory look at SB 494 might lead you to think it merely updates the law regarding advance directive. This is true, but there’s more. If the bill passes, it could allow a court to interpret a request on an advance directive to refuse tube feeding to also mean you don’t want to receive spoon feeding! SB 494 would also create a committee, appointed rather than elected, that can make future changes to the advance directive without approval from the Oregon Legislature. This could easily result in further erosion of patient rights.”

The patients who would be affected by SB494 aren’t comatose. They aren’t relying on ventilators, tube feeding, or an IV to stay alive. Instead, these patients are fully conscious and aware; they are simply unable to feed themselves.

Current Oregon administrative rules require that nursing homes offer their patients three meals and snacks each day. The facilities must also provide “assistance with eating (e.g., supervision of eating, cueing, or the use of special utensils).”

Patients can refuse to eat the food they are given, but Nora still expresses a desire to eat. SB494 would allow Nora’s nursing home to withhold food and water from her, even if she wants to eat and drink.

With its passage in the Senate, SB494 now moves to the House of Representatives. Oregon was the first state to legalize physician-assisted suicide in 1997 for terminally ill patients. Since then, a total of 1,127 patients have died from doctors giving them prescription medication to end their lives, according to a 2017 report by the Oregon Public Health Division.

Abortion Supporter and Professing Conservative Tomi Lahren Doesn’t Understand Conservatism

Conservative firebrand and TheBlaze TV host Tomi Lahren appeared on ABC’s The View this past Friday, discussing Trump, terrorism, Russia, and other political issues. Most notably, however, Lahren admitted to The View’s audience that she is “pro-choice.”

Regarding abortion, Lahren said:

“I am pro-choice, and here’s why. I’m a constitutional [conservative], someone that loves the Constitution. I am someone that’s for limited government, so I can’t sit here and be a hypocrite and say that I’m for limited government but I think the government should decide what women do with their bodies… I’m for limited government. So stay out of my guns, and you can stay out of my body as well.”

Aside from the fact that “pro-choice” is a dishonest phrase to convey the pro-abortion position, Lahren displays an astounding ignorance of the Constitution and the philosophy of limited government.

Objectively speaking, the right to abortion does not exist in the constitution. The alleged right to abortion was invented by seven Supreme Court justices in Roe v. Wade (1973). The right to life, on the other hand, is declared in the Declaration of Independence and protected in the Constitution. Indeed, the right to life is the first inalienable right enshrined by the founders.

Lahren also grossly misunderstands the implications of the limited government philosophy. Limiting government does not require the abolition of government or provide the absolute freedom to do whatever we want with our bodies. In a society built upon the principles of limited government, the state still has an important role: upholding the inalienable rights of each of its citizens, beginning with the right to life.

As previously mentioned, the right to life is first among all rights. In fact, without the right to not be killed, the concept of inalienable rights ceases to exist. The right to speak freely, believe freely, bear arms, and all other fundamental rights depend on someone first being alive to exercise those rights. If the right to life can be taken from us, so can all the others.

For this reason, opposing abortion is foundational to limited government ideology. Legal abortion undermines the very principle of inalienable rights. Without inalienable rights, government growth is inevitable, effectively making limited government impossible. A government that strips human beings of the inalienable right to life is not a limited government. It is a tyrannical and violent government. Any constitutionalist would know that.

 

James Silberman is a guest contributor to the FPIW Blog. He is a pro-life activist from Gig Harbor, WA, and a student at Whitworth University.