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Published: August 1, 2012 7:16 am to Politics News

Defending life within the boundaries of the Constitution

On Monday, we discussed how interpreting the Constitution from an originalist perspective reveals that there is no constitutional right to abortion. I concluded that post by challenging pro-choicers to put constitutionalism above ideology and demonstrate whether they recognize any areas where their agenda must yield to higher principles, such as judicial honesty.

In the interest of fairness and clarity, today we’ll turn that question around: what constitutional limits must pro-lifers recognize while pursuing our goals?

The first, obviously, is the prospect of pro-life judicial activism. As Justice Antonin Scalia told CNN’s Piers Morgan earlier this month:

Just as the pro-choice people say the Constitution prohibits the banning of abortion, so, also, the pro-life people say the opposite. They say that the Constitution requires the banning of abortion, because you’re depriving someone of life without due process of law.

I reject that argument just as I reject the other one. The Constitution in fact, says nothing at all about the subject. It is left to democratic choice.

Colonial laws at the time of the American Founding and the English common law preceding it generally recognized abortion as a crime, but the Constitution left it up to the states to define and punish most crimes. So a pro-life judge would be on very shaky ground if he tried to pull an anti-Roe and argue that the Constitution forbids states from allowing abortion.

Second, some pro-life legislative efforts have unfortunately relied on some of the same shoddy theory that the left employs. For instance, David Kopel at the legal blog Volokh Conspiracy explains that federal versions of the Partial-Birth Abortion Ban and Pain-Capable Unborn Child Protection Act have cited an expansive, activist interpretation of the Commerce Clause as justifying the legislation:

Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.

Obviously, getting an abortion from an abortionist within your own state isn’t “interstate commerce,” nor can it be said to “affect” interstate commerce in any concrete way the Founders would have recognized as applicable to the Commerce Clause. Ironically, this weakness is unlikely to spell either act’s doom because liberals wouldn’t dare undermine a precedent that is so vital to so many other aspects of their agenda.

But can those laws be upheld on other grounds? Does the Constitution allow the federal government to do anything about abortion? Fortunately, the answer is yes.

The Fourteenth Amendment forbids states from “depriv[ing] any person of life, liberty, or property, without due process of law” and “deny[ing] to any person within its jurisdiction the equal protection of the laws.” President Ronald Reagan noted that the amendment’s framer, Congressman John Bingham, declared his intention that its protections extend to “any human being.” The amendment empowers Congress to “enforce, by appropriate legislation, the provisions of this article.”

Now that we know without a doubt that the unborn are human beings, it follows that the Fourteenth Amendment gives Congress sufficient power to restrict abortion and even ban it entirely, on the grounds that the unborn cannot be denied the same protection against being killed that everyone else enjoys. And courts could obviously enforce whatever “appropriate legislation” the government enacted on the subject.

There are lines pro-lifers mustn’t cross while pursuing their goals, but the good news is that our goals are far more compatible with the Constitution than those of abortion advocates. That’s no coincidence, considering that the pro-life movement’s core principle – the equal rights of all human beings – is the same principle at the heart of the Constitution. Abortionism, by contrast, is an attack on that principle, and therefore cannot help but come into conflict with our founding documents.

About Calvin Freiburger

Calvin Freiburger is a Wisconsin-based conservative writer and 2011 Hillsdale College graduate, dedicated to the principles of the American Founding—individual liberty, limited government, public virtue, and strong defense—though he believes no issue is more important to a free society’s survival than defending the unalienable rights of society’s most vulnerable members. Calvin was previously a regular contributor to NewsRealBlog.com and the Hillsdale Forum, and now also writes for PatriotUpdate.com. His work has also appeared on LifeNews.com, LifeSiteNews.com, RightWisconsin.com, AmericanThinker.com, and his personal blog (rightcal.blogspot.com). In high school and beyond, he aided the pro-life cause both as a volunteer for Pro-Life Wisconsin and as a member of HeartBeat Teens, a Fond du Lac County pro-life youth group.


View all posts by Calvin Freiburger

  • Rob

    Agreed. The anti-abortion movement needs to bring about change without judicial activism. However, pro-life legislation from the U.S. Congress will inevitably be challenged in court as conflicting with the constitutional right to an abortion enunciated in Roe. This nation desperately needs to elect Presidents who will appoint originalist judges to the Supreme Court, who would then overturn Roe.

  • Stoneybrooke

    I really don’t feel like getting into this for a third time, but I just have to state the obvious: how is assuming control of someone else’s body not “depriving her of liberty”?

    • http://twitter.com/CalFreiburger Calvin Freiburger

      I like how you keep pretending not to know the answer, despite it being painstakingly explained every bloody time someone brings it up.

      • Stoneybrooke

        Really? I haven’t heard any actual explanations, just rather offensive statements about how pregnant women’s bodies are no longer theirs. I’ve already referenced this article, but since you ignored it, I’ll ask here: you don’t think these women’s constitutional rights were violated?
        http://vitaminw.co/nation/10-tips-avoiding-jail-when-youre-pregnant

        • StoneybrookeNeedsaDegree

          You need a better source article if you’re going to attempt to explain that an unborn baby should somehow die. You have liberty and freedom, you do not, however, have the right to end a life. Whether the life is inside you or your next door neighbor.

          Are you trying to tell me that true feminism is telling women they are not strong enough to be pregnant, work, and become a mother? Are we supposed to continue telling women they should just kill the life inside of them because you label an unborn baby something else?

          Come on, you have your liberties. One being that you can go and seek sterilization if you are SO fearful of pregnancy. Then you can focus on other things, such as obtaining an academic degree in research so you can learn where to pull substantive, academic articles that portray opinions in appropriate ways without fallacy.

          • Stoneybrooke

            I actually do have a degree and have written many academic papers. How about you?

            Also, why do you keep using different names? You’re obviously the same person who keeps replying to my posts with irrelevant ramblings.

            Also, you didn’t actually address any of the cases in the article where women were imprisoned or denied care because of their pregnancies, which I certainly consider to be a violation of their constitutional rights. I’m not saying women can’t handle being pregnant and having children if, and here’s the key, that is what they want. No one’s telling anyone that they “should” have an abortion, just that safe, legal abortion should be available.

          • Detroiter327

            PS Stoneyb when you click on the @ you come across all the comments this person has posted, even with the different names. Interesting!

          • Detroiter327

            I enjoy this answer. Anyone who admits that pregnancy is dangerous should be sterilized. Ladies and gentlemen! Pro life at its finest!

          • Stoneybrooke

            Yeah, except most of them think that sterilization shouldn’t be easily accessible either, which I don’t understand! I’d think they would be all for that, since it’s effective birth control that certainly doesn’t cause the oh-so-tragic death of any zygotes.

            Also, I like the implication that there’s such a thing as “an academic degree in research”, like you can major in “research” in college. (I suppose library science would be the closest thing…?) It’s also kind of funny (and telling) that this person thinks that “substantive, academic articles” are merely “opinions”. I’m pretty sure newspaper articles and scientific studies published in peer-reviewed journals are more than just someone’s opinion…

            Also, that’s funny about being able to see all of the posts by this person who can’t seem to pick a name or alias and just stick with it. Are they not aware that it’s obvious they’re all the same person?

          • Kristiburtonbrown

            While there are pro-lifers who oppose sterilization, I think pro-lifers are misrepresented by your statement. I think most of us would actually have zero problem with sterilization being considered health care or with people having it done. What we oppose is being forced to pay for abortion or certain types of birth control that kill a new, growing human being. Other than that, I really don’t care what people want to do for their own health care – it really is their own business, and I hope it’s the best for them that it can be.

        • http://twitter.com/CalFreiburger Calvin Freiburger

          Yes, you’ve heard man, many explanations. When you hear them, you lie about the people who make them saying women’s “bodies are no longer theirs.” Like I told you in the other thread, you shouldn’t be debating abortion until you develop a greater willingness to approach the subject with some more maturity and objectivity.

          • Stoneybrooke

            Well, first of all I’m not a man. Secondly, what I said is true. Perhaps /you/ shouldn’t be debating abortion until you can acknowledge that forced gestation and childbirth is taking away a woman’s right to her own body.

            Also, way to completely avoid that article for the, what, third time? You’re always writing about the constitution as though you’re some sort of expert–how are their constitutional rights not being violated? Or how about this poor girl in a country where abortion is illegal: http://www.cnn.com/2012/07/25/world/americas/dominican-republic-abortion-teen/index.html?npt=NP1 Is it okay to deny a girl lifesaving chemotherapy because she’s pregnant? How is that anything but a violation of her rights?

          • prochoiceisprolife

            Women’s lives and rights don’t matter to these folks, Stoneybrooke. Sure, they pay lip service to it — it’s much harder to sell if they don’t. But their actions speak louder than their words: and their actions are to elevate the “rights” of the zygote above the woman, such that a when a woman’s life is imperiled by pregnancy, she does not have the right to seek life saving medical care, because that would interfere with the “rights” they’ve granted the zygote/embryo/fetus. Unless a woman remains a virgin (with a body guard, presumably, to prevent rape), she deserves potential death, life altering pregnancy complications, or parenthood. But don’t worry. That’s not sexist at all. It’s not infringing on a woman’s rights to sentence her to death because of a 9 week old clump of cells (that’s going to die anyway).

          • Kristiburtonbrown

            Most pro-lifers – including me – would say that the girl in Stoneybrooke’s article most definitely has the right to receive chemotherapy. Her baby may or may not die, but the purpose of chemotherapy isn’t to kill the baby – it’s to save the mother’s life. And we do not believe that a baby’s life is ABOVE the mother’s life. We believe they are equal. And so the mother has an equal right to save her own life.