In a recent note, I addressed the question of whether there is such a thing as “States’ Rights,” and concluded that States have powers – only human beings have rights, which are self-evident, unalienable, and given by their Creator.
This has led to recent discussions with some liberty-minded friends as to whether the often-heard argument that “abortion is a States’ rights issue” holds any water.
As I noted in these discussions, there are, Constitutionally, State powers, as well as powers that belong to the national government and to the people themselves. It can be argued that that national government does not have the power to regulate the definition of murder nor the power to punish murderers; it doeshave the power to provide for the Punishment of counterfeiting the Securities and current Coin of the United States, to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations (Article I Section 8), and to declare the Punishment of Treason (Article III Section 3). Therefore, under that argument, the issue of pre-natal murder is indeed a States’ powers issue.
However, it can also be argued that, Constitutionally, the national government does have some power in this area. In the Preamble, it specifically states that the Constitution was ordained and established to secure the Blessings of Liberty to ourselves and our Posterity, which is defined as future generations or descendants; in other words, the Constitution was not just written for the people born at that time, but also for people yet to be born, and by killing those people in the womb, we are violating their Constitutional rights which are defined in that document.
Also, Article IV Section 3 gives the national government the power to make Rules and Regulations respecting the Territory or other Property belonging to the United States (but not respecting the States themselves). Therefore, Congress can pass laws outlawing abortion in American Samoa, the Virgin Islands, even the District of Columbia itself.
The Ninth Amendment says that just because certain rights aren’t specified in the Constitution, doesn’t mean the people don’t have those rights; a good argument can be made that this includes the right to not be killed just because a person is inconvenient or unwanted in the eyes of others.
In the Fifth and Fourteenth Amendments, it’s clear that no person shall be deprived of life without due process of law, which, while it refers to trial and punishment, clearly infers that you can’t just declare that one class of human beings is not entitled to life at all.
The Eighth Amendment states that there should be no cruel and unusual punishments inflicted, which one can assume includes punishment for simply existing and being unwanted.
The Fourteenth Amendment says that States cannot deny to any person within their jurisdiction the equal protection of the laws, so if a 31-year-old has protection from being killed for existing unwanted, a 31-day-old should have that same protection, and so should a 31-day-in-the-womb baby (in fact, Congress is given the power to enforce this provision by legislation – which means that Congress actually can pass laws against abortion).
So, is abortion a States’ rights issue? No, since there’s no such thing as States’ rights; there are only State powers.
So is abortion a State powers issue? Yes and no. For the most part, the national government simply does not get involved in how each State defines and punishes murder, so abortion shouldn’t be any different, as it is simply the murder of a human being in the womb. However, if any number of States started passing laws stating that it was OK for parents to kill their children under the age of five, as long as the parents determined that those children were “unwanted,” the Constitution does appear to give Congress the power (under Article VI – “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”) to pass laws superseding those State laws in order to protect those human beings. In the same manner, Congress would have the power to pass laws superseding State laws stating that it’s OK to kill children in the womb, as well.
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