At the August 23 Republican presidential debate, former Vice President Mike Pence and Sen. Tim Scott (R-SC) announced their support for a federal 15-week abortion ban. But Gov. Doug Burgum (R-N.D.) waved a pocket Constitution before the audience declaring his position as a pro-life governor in a pro-life state, noting that the 10th Amendment reserves that power to the states, not the federal government. Vivek Ramaswamy agreed that the issue should be decided on the state level.
Conservative Christians can find much to agree with in both arguments. The 10th Amendment, the cornerstone of limited government, provides that “The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Unless another provision of the Constitution delegates power over abortion to the federal government or prohibits the states from regulating abortion, the power is reserved to the states.
But the 14th Amendment provides in part that “nor shall any state deprive any person of life, liberty, or property, without due process of law,” further noting that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In Roe v. Wade (1973), the Supreme Court stretched the term “liberty” beyond recognition to include abortion but dismissed the guarantee of “life” by saying dogmatically and without support that the “persons” protected by the 14th Amendment do not include unborn children.
The Court took a moderate position in Dobbs v. Jackson (2022). The Justices could have gone to one extreme and affirmed Roe v. Wade, saying the “liberty” guarantee of the 14th Amendment means abortion must be legal in all states. Or they could have gone to the other extreme and said the “life” guarantee includes unborn children and therefore abortion must be prohibited in all states.
Instead, the Court took a middle course, saying the Constitution does not protect the right to abortion and therefore the issue is left to the states. But nothing in Justice Alito’s majority opinion expressly prohibits a federal ban, although Justice Kavanagh’s concurring opinion comes close to rejecting the argument that the 14th Amendment guarantee of life requires a national prohibition.
Let’s look at the 14th Amendment more closely: “Nor shall any state deprive any person of life,” it says. The states may not deprive people of life, but does that mean the states must protect life? As Ramaswamy told CNN, “If murder laws are handled at the state level, and abortion is a form of murder – the pro-life view – then it makes no sense for that to be the one federal law.”
So conservative Christians can hold different opinions. On the one hand, most of us believe the unborn child is a living person whose life deserves legal protection. On the other hand, most of us are constitutionalists who believe in limited, decentralized government, and we therefore fear excessive federal power.
Whichever position one takes – and I’m pretty much a states’ rights man – there is much the federal government can do to battle abortion short of a federal ban:
Retain and enforce the Hyde Amendment which prohibits federal funding of abortion.
Reinstate policies (rescinded by President Biden) that prohibit federal funding for abortion counseling and referrals. For those who think this prohibition may violate free speech, please see Rust v. Sullivan (1991).
Invalidate President Biden’s executive order – which euphemistically and deceptively uses the term “reproductive health care services” rather than abortions – and regulations allowing abortions, abortion counseling, and abortion referrals at military hospitals and at Veterans Administration facilities, providing leave for federal employees to travel to obtain abortions and/or reproductive health care services. This could be done by Congress, a federal court, or the next president. Special thanks to Sen. Tuberville (R-AL) for holding up high-level military promotions so long as this policy continues.
Reinstate the Mexico City Policy (rescinded by President Biden) which prohibits federal funds from going to international aid groups that perform or inform about abortions. Besides promoting abortion in the United States, the Biden administration is now promoting abortion worldwide.
Based on the Commerce Clause of Article I Section 8, enact a federal law prohibiting the sale and transportation across state lines of mifepristone and misoprostol (abortion pills) and equipment used for abortions.
Nominate and confirm more pro-life federal judges and justices, something unlikely until a new president takes office.
Disseminate accurate information about the stages of fetal development and the risks of abortion instead of the Biden administration’s pro-abortion lies.
Alabama already has the best abortion law in the nation, but let’s ramp it up. Let’s protect unborn children by adopting a state law declaring null and void all federal laws and regulations providing for abortions at military hospitals and federal facilities in Alabama. That will undoubtedly provoke a federal lawsuit invoking the Supremacy Clause of Article VI Section 2, but that’s a subject for a future column.
And let us all work at the federal, state, and local levels to protect the rights of unborn children. Human rights are only as secure as the rights of our most vulnerable citizens – our unborn children.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law and Government Policy (www.obcl.edu) and as Senior Counsel for the Foundation for Moral Law (www.morallaw.org). Those who have constitutional concerns may contact the Foundation at (334) 262-1245.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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