by William M. Banta
Assume that a woman brought a case today challenging the constitutionality of a State statute outlawing her personal choice of an abortion. Assume further that the State law allowed abortions for preserving the mother’s health or life, but not for other reasons.
That was Roe v. Wade in the original. Based on the United States Constitution, what should the Supreme Court of the United States do with such a case today? Since the Constitution has not been amended over abortion, the answer is that today’s Court should deal with the case the same way the Court in Roe v. Wade should have, but did not.
The Constitution is the law that applies to any Supreme Court decision of Roe v. Wade. The Constitution says that it is the supreme law of the land and all American judges are required by oath or affirmation to support it. Based on the principles explained in The Federalist Papers, the Constitution is limited to what it says. The Federalist Papers also explain that while the Federal government has few (but important) national powers, State governments are the only general governments with broad powers over our personal lives. Therefore, if the Constitution does not delegate a power or case to the Federal government, then it belongs to the States or to the people themselves.
To find out whether the United States Supreme Court should decide a case challenging a State law concerning abortion, we need only look at the Constitution. When we review the supreme law, we find nothing about Federal power over abortions. Therefore, the Supreme Court would lack jurisdiction to decide such a case against a State law.
Had the Supreme Court in the original Roe v. Wade followed the Constitution, the Court would not have taken it upon itself to decide Roe v. Wade. Instead, abortion laws and policies would have remained for each State and for the people to decide locally or individually for themselves.
The United States Constitution is understandable and reliable in its application to legal issues. That is why the people ratified it as the supreme law of the land. Under the Constitution, Roe v. Wade was never for a Federal court to decide. Nor is it today.