Abortion has been a controversial issue throughout the history of America. It can be assumed that during the colonial period the legality of abortion reflected the prevalent attitude of the country that controlled a colony. In the British colonies abortions were legal if they were performed prior to quickening (when the mother could detect movement of the fetus). In the French colonies abortions were illegal but frequently performed. In the Spanish and Portuguese colonies abortions were illegal. Abortifacient agents were known as were mechanical methods but both were unsafe. Mortality rates for mothers using either process were high. Therefore, infanticide was probably the most frequent way of killing unwanted, illegitimate children.
There has always been a demand for abortions in America. The demand will continue for the foreseeable future. Justifications include saving the life of the mother, age of the mother, rape, incest, shame of illegitimacy, inheritance, deformity or disease of the fetus, poverty and more recently inconvenience. Until recent generations a man who impregnated a woman would accept responsibility for the act and voluntarily or under coercion marry the pregnant woman and support the unintentional family. As women became more aware of their rights and began to assert them some decided not to endure the long term consequences of unintentional intercourse.
The Founding Fathers were well educated and knowledgeable of Sir William Blackstone’s teachings and British common law. They were fully aware that abortions were illegal subsequent to quickening. They were very organized and methodical. During the 1787 Constitutional Convention they debated every issue important to structuring a government that preserved inherent human liberties and could last indefinitely. It is highly improbable that they overlooked the issue of abortion. It is more likely that they anticipated it could not be resolved on the national level and should be determined by each state.
The Roe vs Wade decision struck down the Texas statute prohibiting abortion during the first trimester of pregnancy The justification for the decision was a fabricated right to privacy derived from the 14th Amendment. It is obvious this was an attempt by the Supreme Court to satisfy the increasing public demand for abortion. The Supreme Court is not authorized to create law. The Constitution only authorizes Congress to create laws. The Supreme Court has appellate jurisdiction under the Constitution. Since the issue of abortion is not in the Constitution the court has no jurisdiction.
The National Pro-Life Alliance is promoting a Life at Conception Act Petition. The petition encourages Congress to pass a law making abortions illegal by including unborn children as persons. As such, the 14th Amendment would prohibit any state from depriving them of life without due process of law. For many decades conservatives have criticized liberal Supreme Court justices for creating law by redefining words used in the Constitution. And yet that is exactly the process advocated by the National Pro-Life Alliance. The 14th Amendment was ratified in 1868 based on the meaning of its content at the time. The Life at Conception Act would be a subversion of the Constitution Amendment process as documented in Article V. As such, it would be unconstitutional and challenged in the courts. If it weren’t challenged and struck down, how would it be enforced? Would all medical facilities be required to report pregnant women so the government could track them until they give birth? How would pregnant women be identified who don’t consult a medical facility? Would a woman who experiences a miscarriage be suspected and investigated for possibly performing a self-abortion?
In conclusion, the legality of abortion should be determined as intended by the Founding Fathers who wrote the Constitution that was ratified by the states. Determining the legality of abortion is not an enumerated power of the federal government. Therefore, in accordance with the 10th Amendment it is reserved to the states.
