Time to Recognize Roe V. Wade is Unconstitutional
By John Hesling, J.D.
In 1776 Thomas Paine wrote, “In America, the law is king”. In 1780 John Adams sought “a government of laws and not of men.” The Revolutionary War was fought to establish this principle.
All government officials in the United States pledge to uphold the constitution as written. These oaths affirm that the rule of law is superior to the rule of any person or group.
This principle requires that each branch of government act only within its stated constitutional authority. The courts may have power to rule that a law is unconstitutional and void. But courts do not have authority to substitute a new law for the old.
Currently several Iowa legislators are planning to introduce a bill that will ban abortion after 20 weeks except where the mother’s life is in jeopardy. Abortion advocates claim that this would be unconstitutional because it departs from the viability rule set out by the United States Supreme Court in Roe v. Wade (1973).
According to the Des Moines Register, viability of the fetus “marks the point when states can ban abortion”. (DMR 12/8/10 p.8A) But the viability rule imposed by the Court on the nation in 1973 is itself unconstitutional.
When the Supreme Court ruled that the Texas abortion statute was unconstitutional, it should have stopped right there. But the Court went on to legislate a new trimester system of rules for the whole nation to follow.
The Court did not have constitutional authority to substitute these rules as new law. It should have been left to the legislature of each state to craft its own new abortion law.
In his Roe dissent Justice White wrote that the Court had “constitutionally disentitled” the people and the legislatures of the states from their right to weigh and balance the relative rights of the fetus and the mother.
By enacting abortion rules, the U.S. Supreme Court exceeded its constitutional authority. Therefore, the rules are void and do not stand in the way of the new abortion law proposed in Iowa.
