In Roe vs Wade, the Supreme Court holds that no state may restrict or ban abortions, according to a newly discovered right to privacy, implied in the US Constitution. The decision of whether to obtain an abortion is between a pregnant person and their doctor, and the state may not “interfere” with that decision by unreasonable restriction or ban of abortion.
The problem with the holding is that the Constitution makes no mention of any right of the federal government to make that decision. According to the Tenth Amendment, any power of the federal government must be expressly stated in the Constitution, or the power remains with the state or the people, not the federal government.
No signer of the Constitution would have signed the original Constitution and first Ten Amendments if there were an express provision giving the federal government the power to prohibit states from restricting or banning abortions. Therefore, the power of the federal government to restrict or ban abortions is neither express or implied in the US Constitution. The decision in Roe vs Wade is legally and intellectually without merit.
It might be argued that the decision of whether to seek an abortion is between the pregnant person and their doctor. Nevertheless, the question, of whether and how an abortion can occur within a state, can only be decided by the state and the people of that state. Neither the Supreme Court, Congress, the President or the people in another state, can restrict or ban the state’s right to regulate or ban abortion activity within that state.
An amendment correcting the holding in Roe vs Wade is proposed below:
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States regarding abortions and over-turning the holding in US Supreme Court case of Roe vs Wade, and any other court case, law or administrative rule that is inconsistent with this amendment.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of each House concurring therein,
That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:
ARTICLE I
SECTION 1. The power to limit, restrict or regulate whether and how abortions may be performed within a state, is reserved to the States respectively.
SECTION 2. The federal government may not expend federal funds from taxed imposed upon states, to perform or support abortions in any state, unless and until abortions are permitted in all states, and only as consistent with the laws in all states.
SECTION 3. A State may not regulate or restrict a person’s ability to obtain an abortion outside the state.
SECTION 4. No federal, state or local government shall enact or enforce any law inconsistent with this article. Congress shall have the power to enforce this article by appropriate legislation.
