It has become clear that abortion is a tremendous political issue as well as a moral one. Quite apart from the issue of whether unborn babies should be protected from “termination” is the question of which branch of government will make the decisions, and how this question will be answered in the 1980 election year.
Under our system of separation of powers, the legislative branch (Congress or the state legislatures) is supposed to exercise all legislative power. The courts may strike down laws when they are unconstitutional, but are not supposed to rewrite them.
The U.S. Supreme Court, in Roe v. Wade and Doe v. Bolton on Jan. 22, 1973, wiped out the criminal abortion laws of all 50 states by decreeing that any woman has the absolute right to kill her unborn baby throughout the first six months of pregnancy, and for all practical purposes (because of the ineffectiveness of the qualifications) the absolute right to do likewise during the last three months. The U.S. is the only country in the world where abortion is legal throughout all nine months of pregnancy.
The Court not only invented a new 14th Amendment right (which no one else had ever detected in the 100-year-old Amendment), but it invented the act of “abortion” as applied to the period between viability and birth. As Dr. Bernard Nathanson stated in his book “Aborting America,” “This is medical nonsense. There is no accepted obstetrical procedure for intrauterine death after 22 weeks.”
Justice White, dissenting to Roe and Doe, declared that the Court had invested mothers and doctors with the “constitutionally protected right to exterminate” “human life” for reasons of “convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.,” and for reasons of “whim or caprice.”
Following Roe and Doe, nearly every state in the Union tried to restrict the scope of the decisions. The Supreme Court and lower federal courts then proceeded to deprive the legislatures of their right to enact almost any kind of regulation about the mother’s right to kill her unborn baby.
The federal courts knocked out the laws of 12 states which required the mother to get the consent of her husband. In Planned Parenthood v. Danforth, the Supreme Court knocked out the laws of 22 states requiring minor mothers to obtain parental consent before having an abortion. The Court said parental consent could not be required even though there was not a single state that allowed a girl, still under the care of her parents, to undergo any other operative procedure without her parents’ consent.
In Bellotti v. Baird the Supreme Court held that a Massachusetts law gave too much power to parents by requiring that they be notified before their minor daughters get abortions or go to court for approval. The Court lifted the right to abortion to “a constitutional right of unique character” and held that a girl under age 18, ummarried and pregnant and without consultation with parents, should be allowed to satisfy the court “that she is mature and well-informed enough to make intelligently the abortion decision on her own.” How such a child could be “mature” was not explained.
Frustrated in every attempt to put practical regulations on a mother of any age to abort her baby of any age, Congress turned to the use of its preeminent constitutional power, the power of the purse. Under the Hyde Amendment, the Federal Government was ordered not to pay for abortions unless necessary to save the mother’s life.
The lower federal courts are now trying to outdo the Supreme Court in a passion to please the pro-abortionists. Federal court Judge John Dooling ruled on Jan. 15 of this year a woman has a constitutional right to have her abortion paid for by public monies since any abortion is “necessary” if the mother claims it is necessary.
This poses the issue of whether the legislatures, which are accountable to the voters every two years, or the federal judges, who are accountable to no one, should have the power to force us to spend tax dollars to kill unborn babies. Congress and the state legislatures have done their legislative best to resist the federal courts’ usurpation of policy-making authority on this issue, but have been unsuccessful.
The solution is a constitutional amendment achieved through the political process. That’s why abortion is a key issue of the 1980 election year, and all candidates will have to face up to this question.
