Issues rarely, if ever, arise in which we cannot discern the original intent of the Founders and as a result apply the U.S. Constitution appropriately. Unfortunately, many have been led to believe abortion is an example of a modern-day issue not addressed in the U.S. Constitution. Thus, to rule on the question required justices to use their own independent reasoning as to what is right. Conservatives, however, do not believe the Constitution is silent about the rights of an unborn person. The Fourteenth Amendment states, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Let’s look at whether or not abortion should be legal under the Fourteenth Amendment.
John Eidsmoe believes it should not be legal because the Amendment is clear:
Does the term liberty include the right to an abortion? Does the term person include an unborn child and thereby guarantee the child the right to life? These questions probably never occurred to those who passed and ratified the Fourteenth Amendment in 1868; they certainly do not appear in any of the recorded debates. In determining how to apply the Fourteenth Amendment to the abortion issue, suppose that someone had asked “Does person include unborn children?” or “Does liberty include the right to abortions?” during the floor debates on the Fourteenth Amendment. What would have been the likely response, given the basic morals and values and perceptions of those involved at the time? In an effort to interpret the founding fathers’ initial intent the following question could be asked, “Given the founding fathers’ basic values, what would have been their view of abortion, had they known the latest scientific and technical information about the unborn child? The fact that the Fourteenth Amendment was passed and ratified in 1868 when most states had either passed or were in the process of passing laws to prohibit abortion—a fact that Justice Blackman overlooked in Roe vs. Wade—may help interpret and apply the signers of the Constitution intent. (Footnote #33)
Obviously, the “right to abortion” is contrary to what the authors of the Fourteenth Amendment had in mind.
Naturally, there are times when changes are called for in the provisions of the Constitution, and the Founders recognized that necessity. They built into the document a very healthy, measured process for making appropriate alterations. Article V provides the formula: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislature of two-thirds of the several States, shall call a convention for proposing amendments.”
Nowhere does it say judges are permitted to amend the Constitution through their decisions! Only the people—through duly elected representatives—are allowed to do so. As Samuel Adams wrote, “[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary.” (Footnote #34)
George Washington, in his Farewell Address, reminded the nation how critical it is to amend the Constitution only according to the process set forth in document itself: “If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
The “customary weapon by which free governments are destroyed”! I fear the words of our first president will prove to be prophetic. If the American people continue to allow the law to “evolve” through the decision of judges whose only yardstick is moral relativism and situational ethics, a free America will come to an end.
Eidsmoe, Christianity and the Constitution, 400–401.
34 Samuel Adams, The Writings of Samuel Adams, Harry Alonzo Cushing, ed., vol. 4 (New York: G. P. Putman’s Sons, 1904), 388, to the Legislature of Massachusetts.