Will the Left’s ‘Living’ Constitution Again be Used to ‘Kill’ the Unborn?

©2019 CLIFFORD C. NICHOLS, ESQ.

 

The Left contends the United States Constitution is a living document.

And actually, they need it to be.

Otherwise, it could never be interpreted to discriminate against a defined class of individuals — the unborn — by permanently depriving them of their rights to life, liberty, and the pursuit of happiness.

Starting the journey of life….

Starting the journey of life….

In January, the Left used the New York legislature to tell us all that abortions are now lawful up to the date of a child’s delivery. And then in Virginia, the Governor boldly suggested that the right to choose between the life or death of a child should be available to a mother even for a reasonable period of time after the child is born. Perhaps to provide time for the mother and her doctor to kick back and discuss the child’s fate over a cup of tea.

What is not shocking is that the Left did not care one iota whether these outrageous positions shocked the conscience of many others throughout America.

Yet, what is amazing is how outraged the Left has become by the humanitarian responses of those others in places like Georgia, Alabama and now Missouri to severely limit, if not eradicate, the horrendous practice of abortion altogether.

The anger this conflict is producing is becoming palpable, and some are even saying it is forming the battle lines for what could be our nation’s next civil war. If true, the only significant difference between this one and the last would be that instead of protecting slaves, this civil war would be about protecting the unborn. However, before any bullets start flying, no doubt both sides will surely seek recourse to an intercession by the Supreme Court.

The Constitutional question presented:  Is a state law that makes terminating the unborn with prejudice a felony unconstitutional? Or, put differently, is a woman’s choice to kill the unborn she is carrying within her a right our Constitution was intended to protect?

In Roe v. Wade, the Court attempted to justify its decision to find such a right in the Constitution by cloaking it within a nebulous discussion about it being a derivative of a woman's right to privacy. The problem that has haunted that decision ever since, however, was that nowhere in the actual language of the Constitution itself can even any right to privacy be found to exist, much less any right — like abortion — the Court would have predicated upon a right it only imagined should exist.

However, this time around liberal justices on the Supreme Court know this problem can be avoided simply by replacing the term “privacy” with the term “liberty.”

The latter is a term that actually does exist in the language of the 14th Amendment and was recently employed in Obergefell v. Hodges to successfully fabricate another constitutional “right” — to gay marriage — out of thin air. So, no doubt the liberal justices on the bench will most likely think, why not use it again to justify the right to abortion as well.

According to Justice Alito, the majority in Obergefell defined the liberty protected under the 14th Amendment to be a constitutionally guaranteed “freedom to define your understanding of the meaning of life." 

Whatever that means.

Justice Alito pointed out that, although the Rehnquist court had previously worked to limit the legal definitions of that liberty to those practices that were deeply rooted in the traditions of the country, “the Obergefell decision threw that out."

To Enjoy life, liberty and the pursuit of happiness…

To Enjoy life, liberty and the pursuit of happiness…

"So we are at sea,” he added, “I don't know what the limits of substantive liberty protection under the 14th Amendment are at this point…. There is no limit…. constitutional rights [can now] be handed out by justices according to their ideological whims…” (emphasis added)

And so it is with the Left's living Constitution.

If the majority of the Court reviewing Alabama’s law leans Left, it will have no difficulty finding that a woman’s liberty guaranteed by the 14th Amendment gives her the right to choose abortion, even though by doing so it necessarily must trump any liberty the baby she is carrying might want to lay claim to.

Never mind that this contortion of the law absolutely defies logic. In fact, it makes as much sense as a slave owner claiming his constitutional right to liberty gives him the freedom to choose to deny others their constitutional rights to liberty in order to make them slaves. But then again, such illogic has often been the hallmark of notions from the Left and so, it is foreseeable they will not hesitate to apply it this time around to abortion.

On the other hand, many others who choose to think rationally are hopeful the Court this time around will comport with logic, return to the Rehnquist Court’s limitations on the 14th Amendment’s definition of liberty, and hold that a choice of one human being to kill another — i.e., abortion — is not a liberty so deeply rooted in the traditions of this country as to become a right our Constitution was intended to protect.

Consequently, for any state — like Alabama — to render abortion a felony would not be a violation of anyone’s “ constitutional rights,” and therefore, should be upheld.

Sadly, however, this result is far from certain. At present, it is anybody’s guess whether the Court’s logic will be trumped by its fear of the Left’s anticipated irrational response to rational thought. If it is, to avoid any violence — i.e., some form of civil unrest, if not civil war? — it is safe to assume the Court will again cut logic adrift and seek the shelter of a living Constitution.

That is, a Constitution at least alive enough to allow the deaths from abortions to continue … even if such an interpretation of the Constitution would make our nation's founders who drafted it roll in their graves. 

Clifford C. Nichols is an attorney licensed to practice in California and New Mexico. Please direct any comments or questions regarding this editorial to cliff@cnicholslaw.com.


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