The Right to Privacy
Abortion has ascended to prominence in modern America’s public debate for bodily autonomy, including the infamous claim over a fundamental “right to privacy.” The act of performing an abortion itself is Constitutionally unsupported; America’s modern determination whether performing an abortion is Constitutionally recognized as a fundamental right has fallen contingent on Judicial Review, and their equivocation of the U.S. Constitution. Supreme Court Justices are not legislators, nor should be tasked as U.S. policymakers; evident problems that persist through erroneous policy are addressed through Congress, or delegated to the States. The Supreme Court (SCOTUS) previously ruled abortion as an inherent right, Roe v. Wade in 1973, and Planned Parenthood v. Casey, 505 U.S. 833 in 1992, proceeding to overrule their own ruling decades later in 2021’s Dobbs v. Jackson. Modern Americans must question the nature of the Supreme Court’s subjective interpretations deemed objective law; lest the Union of the States fall into monarchy, whereby the interests of Judicial Review supersede the U.S. Constitution itself, catering to selective representation under a loose constructionist rationale. The Supreme Court need only declare what the law is, for they are not lawmakers, nor legislators who draft policy; yet today’s Supreme Court Justices dictate bold Constitutional interpretations and rulings, expanding implied rights to bolster national government power.
The right to privacy itself is a Constitutional misinterpretation first presented in the 1965 Griswold v. Connecticut SCOTUS ruling, which empowered the federal government to legislate what defines conditional privacy. The historicity of legislated substantiated rights itself is unmerited; each American’s fundamental inherent rights are formed as rights individually ordained by God, not granted by a centralized government institution. America’s resounding principles of various intrinsic rights were acknowledged in the 1776 Declaration of Independence, a decade before a national government was enacted in 1787; in 1791 further human rights were ratified in the U.S. Bill of Rights, continuing until 1992 when the 27th Amendment was passed by Congress.
The right to abort an unborn fetus is not a fundamental right; the Founders derived their views on abortion from the extensive and traditional history of British Common Law. Historian Theodore Plucknett states that in England the Church revolutionized English Law between 400AD and 597AD, writing that, “Christianity had inherited from Judaism an outlook upon moral questions which was strictly individualistic. The salvation of each separate soul was dependent upon the actions of the individual. This contrasted strongly with the custom of the English,” (Plucknett, T.). The U.S. Constitution, the Bill of Rights, and subsequent U.S. laws have derived from England, and represent an objective basis for interpretation under an originalist perspective, the intent desired by the Founders. This claimed intrinsic right is neither found in the history of English Common Law nor in American tradition; Abortion, remains a modern moral dichotomy, however, one should not be legislated by the Supreme Court but left up to the States and local communities to decide.
In British Common Law, abortion was declared a capital crime from 1803-1828, under Lord Ellenborough's Act, 43 Geo. 3, c. 58 existing for a quarter century. Historian Theodore Plucknett writes that “[e]ven purely private law fell under the influence of the extreme conservative reaction of which Lord Ellenborough was the personification in the King’s Bench,” (Plucknett, 252). The National Institutes of Health (NIH) describes this period of eighteenth-century British rule as a “Bloody Code,” whereby the accused were put to death for their offenses, (NIH). Biblically abortion is prohibited, dating back to the Old Testament; Exodus 21:22 (NIV) reads that “Anyone who strikes a person with a fatal blow is to be put to death,” while Exodus 23:7 (NIV) states that Christians should “[h]ave nothing to do with a false charge and do not put an innocent or honest person to death, l for I will not acquit the guilty.”
Privacy and the method of interpretation for inherent substantiative rights remained an ongoing debate throughout the 19th Century. In 1890, Harvard Law Review published “The Right to Privacy,” noting that, “full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection,” written by Samuel D. Warren II and Louis Brandeis. Contrary to this objective moral basis, the Supreme Court Justices cited influential Greek philosophers, writing in their ruling of Roe v. Wade that “[m]ost Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them, the embryo was animate from the moment of conception, and abortion meant the destruction of a living human being. The abortion clause of the Oath, therefore, ‘echoes Pythagorean doctrines,’” (Oyez).
Judicial Review was instituted following 1803’s Marbury v. Madison ruling; this allows the Supreme Court to rule if an act of the Executive or Legislative Branch is Constitutional (Oyez). In 1819 the Supreme Court established the doctrine of implied powers following the ruling of McCulloch v. Maryland; the ruling facilitated SCOTUS, the Courts, and the public, to begin interpreting the Constitution as a living document, applicable to the needs of modern society, rather than using the originalist perspective of the Founders (Oyez). These early debates since 1803 have led America to observe the Constitution as an interpretational document, whose basis depends on modern situations or circumstances; each Supreme Court ruling broadening the national government’s power.
In 1973, Roe v. Wade continued this erroneous policy, whereby the Supreme Court claimed that an individual’s right to abortion held merit. The claimed fundamental right to an abortion originated through a lie under oath, propagated by Norma McCorvey, who claimed she was raped in an effort to rid herself of having a third child; as she had previously surrendered her two children for adoption. As stated in the legislative record, “[i]n her lawsuit, Roe alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments,” (Oyez). Nowhere in the First, Fourth, Fifth, Ninth, or Fourteenth Amendments does it mention abortion, nor depict language concerning abortive practice; McCorvey’s Constitutional rights could only have been abridged by interpretation of implying that this resolved to an individual right to privacy.
In Matthew 5:33,34, Jesus guides us stating, “[a]gain, your ancestors were taught, ‘Never swear an oath that you don’t intend to keep,’ but keep your vows to the Lord God. However, I say to you, don’t bind yourself by taking an oath at all.”
It would be Norma McCorvey’s lie under oath that would be venerated by courts for subsequent decades; before her death she claimed that, “[a]bortion is a shameful and secret thing. I wanted to justify my desire for an abortion in my own mind, as almost every woman who participates in the killing of her own child must also do. I made up the story that I had been raped to help justify my abortion. Why would I make up a lie to justify my conduct? Abortion itself is a lie and it is based on lies,” (Judiciary, 2005). The national government specifically chose Henry Wade as the appellee in Roe v. Wade, as he was the District Attorney of Texas, and esteemed by the judicial system; Wade had previously prosecuted Jack Ruby for the killing of Lee Harvey Oswald: the questionable assassin of JFK (Senate). Roe v. Wade represented the national government’s first modern attempt at the deconstruction of inherent American principled morality, appointing a District Attorney without prior expertise in such a field, as the Justice system began to void the Constitution of its authoritative supremacy.
The right to privacy is substantiative, and cannot be legislated, nor is it directly addressed in the Constitution; moreover, as of 2021, the Supreme Court has ruled that abortions are not deeply rooted in the nation's history and tradition, (Dobbs v. Jackson). National regulation of Abortion is a direct violation of the Constitution’s “Guarantee Clause” in Article IV, Section 4.2, reserving enumerated powers to States; ArtIV.S4.2 reads, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” Therefore, the United States government cannot legislate individual sovereignty to be contingent on Judicial Review; nor can it incentivize society to act in such a way that exalts the ruling class, any appointed sector, or self-imposed entity; above the authority of God. The Supreme Court has continuously overlooked civic virtue, instead establishing policies benefiting collectivists who concur with the consistent expansion of modern federal governance. Implied rights were granted to the Supreme Court Justices following 1819’s McCulloch v. Maryland ruling, which according to the Brennan Center, “handed down its decision on January 22, 1973. Seven of the nine justices agreed that the Due Process Clause of the 14th Amendment — which says that no state shall ‘deprive any person of life, liberty, or property, without due process of law’ — implies a right to privacy.” In 1973’s Doe v. Bolton, the Supreme Court ruled that Georgia’s restrictions on abortion had violated the Constitutional rights of the appellant, using the previous ruling to base their judgement; Roe v. Wade had been decided less than 24 hours before this decision Doe v. Bolton was ruled.
In 2021, Dobbs v. Jackson provided legislative backing preventing abortion rejecting the use of implied rights to the Constitution’s Bill of Rights (Oyez). This overturned the previous rulings of 1973’s Roe v. Wade, and 1992’s Planned Parenthood v. Casey. The Supreme Court’s 2021 ruling concluded that;
“The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution… The term ‘liberty’ alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the ‘liberty’ interest protected by the Due Process Clause. In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. For this reason, the Court has been ‘reluctant’ to recognize rights that are not mentioned in the Constitution…the Constitution does not confer a right to abortion.”
Physicians that administer abortions are in direct violation of their own medical commitments and professional standards; the Hippocratic Oath and the Declaration of Geneva. In American modern medicine, the Hippocratic Oath is a medical right of passage practice that has been recognized since the 5th Century to display the physician’s competence and consistent commitment to hold a medical standard for each patient, (UCLA). This oath imparts obligations to physicians throughout the medical community; neglecting to account for these impartial principles results in “disciplinary proceedings, including the loss of license to practice medicine,” (NewsMedical). The National Institutes of Health’s (NIH) National Library of Medicine (NLM) states that the Hippocratic Oath derives from Greek medical text, and “requires a new physician to swear upon a number of healing gods that he will uphold a number of professional ethical standards. It also strongly binds the student to his teacher and the greater community of physicians with responsibilities similar to that of a family member,” (NLM). The Oath features a clause that reads “I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.” Secondly, modern physicians must recite the World Medical Association’s (WMA) Declaration of Geneva; according to the Journal of the American Medical Association, the WMA Declaration of Geneva declares “I WILL MAINTAIN the utmost respect for human life;” “I WILL FOSTER the honour and noble traditions of the medical profession;” and “I WILL NOT USE my medical knowledge to violate human rights and civil liberties, even under threat;” (JAMA). Abortion violates the oaths taken by medical professionals, whereby fails to account the liberties of two lives; instead, it caters to the life with a voice.
Modern abortion holds no standard; the viability of a fetus remains another unregulated area of continued debate between constituents, their representatives, and medical institutions. Fetal viability was defined by the 1989 Supreme Court ruling in Webster v. Reproductive Health Services, requiring physicians to test for viability after 20 weeks. According to Oyez, “The statute's preamble indicated that ‘[t]he life of each human being begins at conception,’ and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life,” (Oyez).
The National Institutes of Health (NIH) proclaims that the determination of “fetal viability” changes depending on the qualifications of surrounding hospitals; the NIH wrote in their report that the “viable of a fetus…means having reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. As a consequence, there is, at the present time, no worldwide, uniform gestational age that defines viability,” (NIH).
Fetal viability is ambiguously defined, unlike “inalienable liberties;” these do not include the individual right to interpret Constitutional law in order to take appropriate the means for legal immunity in order to take another life at will. Dr. Ron Paul; physician, Libertarian, former U.S. Representative; wrote that, “[s]ome people believe that being pro-choice is being on the side of freedom. I’ve never understood how an act of violence, killing a human being, albeit a small one in a special place, is portrayed as a precious right, (Paul, R., 2.). Ron Paul adds that “[t]o speak only of the mother’s cost in carrying a baby to term ignores all thought of any legal rights of the unborn,” Dr. Paul’s position reveals that abortion isn't just about the rights of one individual involved in the legality of the act of fetal execution, but two lives must be accounted for; both the mother and the unborn child hold intrinsic inalienable liberties that must be considered.
Conclusion
In conclusion, the public legislation of inherent rights does not guarantee them to exist; Abortion goes beyond the issue of individual privacy, ensuring the extermination of another life. Beyond its unconstitutionality, there lacks a legal basis to defend abortion, beyond that of Supreme Court rulings. Historically the national government has striven to expand its reach, executing its Implied Powers through Judicial Review, and claiming Constitutional interpretation; this trend has existed since 1803, almost as long as the Judicial Branch itself. The debate over abortion reveals that there exists a public demand for representation for the reining in of Judiciary control, limiting the Supreme Court to its original duties of merely stating 'what the law is, and not aspiring to develop new ones.
- August 14th, 2023
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