Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Federalism May Offer Abortion Solution
FOXNews.com ^ | Thursday, November 17, 2005 | Radley Balko

Posted on 11/21/2005 1:58:09 PM PST by JTN

When the confirmation hearings for Supreme Court nominee Samuel Alito begin in January, much of the debate will focus on the issue of abortion.

Alito has been nominated to replace Sandra Day O'Connor, one of the six justices who reliably voted to uphold Roe v. Wade. It's unfortunate that abortion will dominate so much of the discussion about Alito. It's unlikely that a case offering the opportunity to undo Roe will come before the Supreme Court any time soon, and even if it should, Alito's confirmation would put the unofficial Supreme Court abortion scorecard at 5-4, enough to keep Roe intact. The abortion debate obscures more pressing issues far more likely to come before the Court.

Nevertheless, because abortion will be front and center, I'd like to offer an approach to the issue that will probably elicit reservations on both sides of the debate, but one I think is fair, grounded in the reality of contemporary politics and, most importantly, loyal to the Constitution.

First, my biases: I'm a pro-life libertarian. I believe in wide leeway for and tolerance of personal freedom, but I also believe that a fetus has some rights that the state is obligated to protect.

(Excerpt) Read more at foxnews.com ...


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; News/Current Events
KEYWORDS: abortion; alito; federalism; judgealito; samalito; scotus; supremecourt
Returning abortion to a state-level issue would at least have the benefit of taking abortion off the table when evaluating SC nominees. The Supreme Court deals with many issues unrelated to abortion, but we hear too little of them, because this one dominates the debate.
1 posted on 11/21/2005 1:58:11 PM PST by JTN
[ Post Reply | Private Reply | View Replies]

To: JTN

The plain text of the Constitution makes it clear that abortion is a state issue.

Roe v. Wade has nothing to do with abortion, in one sense. It has to do with who gets to decide.

So many people today forget that the States are sovereign - it isn't just the voters and the federal government.


2 posted on 11/21/2005 2:00:18 PM PST by linear
[ Post Reply | Private Reply | To 1 | View Replies]

To: JTN
Returning abortion to a state-level issue would at least have the benefit of taking abortion off the table when evaluating SC nominees

What will keep future courts from just creating another ROE v WADE scenario?

I've really been curious about this. Any thoughts?

3 posted on 11/21/2005 2:04:34 PM PST by digger48
[ Post Reply | Private Reply | To 1 | View Replies]

To: holdonnow; defconw

Federalist solution ping!


4 posted on 11/21/2005 2:05:56 PM PST by SE Mom (God Bless those who serve..)
[ Post Reply | Private Reply | To 1 | View Replies]

To: JTN
Living in a democracy or republic means not always getting your way. If people aren't willing to live with that on an issue like abortion, then perhaps we need to start looking into abolishing our Republican form of government and installing some kings or dictators.
5 posted on 11/21/2005 2:08:04 PM PST by Question_Assumptions
[ Post Reply | Private Reply | To 1 | View Replies]

To: digger48

Hopefully you wouldn't have a future court with such poor judgment (I understand there are many pro-choicers embarassed by the decision), although there is always that risk. Perhaps a Constitutional amendment. Of course, I already thought that the Constitution was reasonably clear on the subject.


6 posted on 11/21/2005 2:09:50 PM PST by JTN ("We must win the War on Drugs by 2003." - Dennis Hastert, Feb. 25 1999)
[ Post Reply | Private Reply | To 3 | View Replies]

To: JTN
Returning abortion to a state-level issue would at least have the benefit of taking abortion off the table when evaluating SC nominees.

I'm not sure what you are getting at. Abortion used to be a state issue until Roe. In order to revert back to that status, SCOTUS would have to overturn Roe.

So in the context you state, it's moot, because the last thing the liberals want is abortion to revert back to being a state issue - or for just about any other federally-usurped power to revert back as well.

7 posted on 11/21/2005 2:12:04 PM PST by dirtboy (Drool overflowed my buffer...)
[ Post Reply | Private Reply | To 1 | View Replies]

To: JTN

It is the penumbra which needs aborting.


8 posted on 11/21/2005 2:18:41 PM PST by linear
[ Post Reply | Private Reply | To 6 | View Replies]

Comment #9 Removed by Moderator

To: JTN

Wow. Federalism. What a novel idea. Why hasn't anyone thought of it before? /s


10 posted on 11/21/2005 2:53:12 PM PST by nosofar
[ Post Reply | Private Reply | To 1 | View Replies]

To: JTN
If there is a "Right to Life", it is surely a fundamental right and therefore guaranteed by the U.S. Constitution.
11 posted on 11/21/2005 3:38:39 PM PST by Prokopton
[ Post Reply | Private Reply | To 1 | View Replies]

To: Prokopton

If there is a "Right to Life", it is surely a fundamental right and therefore guaranteed by the U.S. Constitution.

Whats next ... A constitutional right to be happy ?


12 posted on 11/21/2005 5:09:27 PM PST by newfarm4000n (God Bless America and God Bless Freedom)
[ Post Reply | Private Reply | To 11 | View Replies]

To: JTN

So what you are saying is that instead of one opinion we should seek 50, and then so doing those 50 have several opinions within their judicial structure, so now we have a virtual cornucopia of opinion stalling the process while more and more children die. Leave it in the Supreme Court, it appears that we who value life may be getting a new voice.


13 posted on 11/22/2005 9:08:19 AM PST by bluekeeton
[ Post Reply | Private Reply | To 1 | View Replies]

To: newfarm4000n

[b]nor shall any person...be deprived of life, liberty, or property, without due process of law[/b]

Seems sort of like a right to me. Not necessarily inalienable, but a right nonetheless.


14 posted on 11/22/2005 9:21:52 AM PST by Blackyce (President Jacques Chirac: "As far as I'm concerned, war always means failure.")
[ Post Reply | Private Reply | To 12 | View Replies]

To: digger48

"What will keep future courts from just creating another ROE v WADE scenario?"

Us, making sure to elect presidents who will nominate justices who will heed the Constitution.

A Republic, if we can keep it...


15 posted on 11/22/2005 2:57:14 PM PST by illinoissmith
[ Post Reply | Private Reply | To 3 | View Replies]

To: Prokopton
If there is a "Right to Life", it is surely a fundamental right and therefore guaranteed by the U.S. Constitution.

Under the Common Law in which the Constitution is interpreted, a fetus in the first semester has no status whatsoever, and has limited status as the chattel of the woman in the second semester. Therefore, the "Right to Life" clause has no applicability to the unborn under any strict legal interpretation.

There are very good legal reasons for the evolution of these conventions in precedent over thousands of years, and the unintended consequences of changing it dramatically for legal precedent would be very ugly -- few proponents of changing it appear to have thought through the broader legal consequences. Legally and technically, the Federal government should have no interest in the abortion issue. Therefore, it should fall to the States to decide. As a practical legal matter, deviating from the current Common Law conventions would be disasterous and would have many legal side-effects unrelated to abortion that most abortion proponents would be adamantly against. This is the real problem: legal systems have to be as consistent as possible across the broadest spectrum of cases they can manage, allowing that there will be edge and "hard" cases where consistent application will produce less than desirable results on occasion. The current common law conventions evolved to produce the maximum legal good for the maximum number of people for the majority of cases; it is not that alternatives have not been tried, but that they have been tried in the past and overturned as being bad ideas in practice for too many cases.

16 posted on 11/22/2005 3:14:06 PM PST by tortoise (All these moments lost in time, like tears in the rain.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: tortoise
The Constitution is not interpreted "in" common law. Although the Constitution has been said to guarantee citizens all rights of English freemen under common law, the founders recognized a much broader range of rights possessed by the people; innate rights not just those recognized by a sovereign.
At common law abortion was illegal after "quickening" or when the mother could feel the fetus move. This is when, with there unsophisticated medical understanding, they could be sure there was life. With modern medical technology, we do not have to rely on such crude methods to determine when there is life in the womb.
The majority of common law has been supplanted in the United States by statutory law. We are indeed a Nation of Laws, not a nation based primarily on judicial decisions, which was "common law". Before the United States Supreme Court decision in ROE V. WADE abortion was illegal in every state. The people, through there legislatures, decided that it should be a crime. The Supreme Court not only took jurisdiction, but they decided that the people were wrong.
Although it is true that history shows legal concepts evolving, there was no evidence that there was any evolution towards a belief that a womens right to privacy trumped the unborn child's right to life. Quite the opposite as there were laws against abortion in every state but, I don't believe there was a single statute concerning a womens right to privacy.
The Supreme Court, rather than recognizing that the law should evolve along with our increasing medical knowledge, devolved the law to make it consistent with there personal social philosophies. The tragedies there decision has wrought is a result of there anti-law and unconstitutional "reasoning".
17 posted on 11/22/2005 9:30:39 PM PST by Prokopton
[ Post Reply | Private Reply | To 16 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson