During the third and final presidential debate, Sen. Barack Obama asserted that Roe v. Wade (1973) was correctly decided. The U.S. Constitution enforces upon the states the right of a woman to procure an abortion, making state laws that prohibit or limit the practice unconstitutional, Obama believes.

Oh, really, Obama? What part of the Constitution enforces this principle upon the states? The Supreme Court asserted in Roe that the term “liberty” in the Fourteenth Amendment’s due process clause — which declares that no state shall deprive of any person of life, liberty or property without due process of law — protects the right to abortion.

Is this what the framers of the Fourteenth Amendment intended? Is this what the people in the states understood they were getting in 1868? Of course not.

Roe is based on nothing but a totally specious interpretation of the due process clause. Issuing yet another ipse dixit, the court simply threw the Tenth Amendment and self-government out the window by declaring what they believed the Constitution ought to mean, rather than what it does mean.

Due process has origins in the Magna Carta. It was simply a procedural protection, requiring the king and his agents to provide access to a traditional hearing before punishing someone.

The Fourteenth Amendment was a reaction to the Black Codes in the South, where blacks were arbitrarily punished by states without access to a trial. The due process clause simply meant that no state agent will execute, imprison, or fine newly-freed slaves — that is, deprive them of life, liberty, or property — without first giving them the benefit of nondiscriminatory access to the court system — due process of law. How this means that a state can’t limit abortion is a total mystery.

Obama, you may have gone to Harvard Law, but you can’t justify the outcome of Roe v. Wade on the basis of an argument of what the Fourteenth Amendment and its due process clause were actually supposed to mean.

Brian Clark

Senior

Political Science