THE LIBERTARIAN ENTERPRISE
Number 170, April 22, 2002
REMEMBER 9/11? REMEMBER 4/19!
Overturn Roe? YES! (Opening)
by W. James Antle III
Exclusive to TLE
Libertarians should favor overturning Roe v. Wade regardless of their own position on abortion. This is because even if they personally favor the policy it mandated, the 1973 Supreme Court decision is antithetical to the rule of law necessary for limited government and maximum individual freedom.
The Constitution is not a purely libertarian document. Murray Rothbard and Lysander Spooner argued in their own times argued for even less government than the Constitution allowed; Hans-Hermann Hoppe does so today; and some of our nation's most important Founding Fathers were among the anti-Federalists, who opposed ratification of the Constitution on the grounds that it entrusted too much power to the federal government. Yet we can all agree that we would be freer if the Bill of Rights was fully adhered to and the federal government only performed actions authorized by the Constitution.
There is absolutely no evidence that the Framers intended to create a right to abortion. The Constitution is silent on abortion and it was not pretended otherwise until 1973. Roe itself relied heavily on the sort of social arguments that one would expect a legislature to engage in rather than a court of law. This is why Justice Byron White denounced it as "an act of raw judicial power" in his dissent and Yale law professor John Hart Ely said, "Roe is bad because it is bad constitutional law or it is not constitutional law and gives almost no sense of an obligation to try to be."
The Fourth Amendment clearly does distinguish between the private and public sphere. This not only recognizes private property rights but a privacy right, making Americans "secure in their persons" as well as their "houses, papers, and effects" but to argue that this mandates legal abortion is a much of a leap as the occasional pro-life insistence that the Fourteenth Amendment prohibition against states acting to "deprive any person of life, liberty or property" mandates illegal abortion. The lack of any explicit or even strongly implied delegation of power over the abortion issue pro or con means that under the Tenth Amendment, states are free to debate the issue of whether to protect the unborn and what value their laws should assign pre-born life.
Roe did not reverse a pro-life federal policy. Instead it abolished the abortion laws of all 50 states, from the most restrictive to the most permissive (California, to cite one example, already allowed virtual abortion on demand). There was simply no constitutional basis for this action.
Government cannot determine its own powers. If the law is deprived of any fixed meaning, then the government -- whether it is the judicial, legislative or executive branch -- becomes a law onto itself. If the Constitution can be used to give the federal government powers its Framers did not intend or can be interpreted to say things that are the opposite of what the Framers had actually said, then there is no constitutional government. There is instead the autonomous government that we have witnessed in the ever-expanding modern state.
Many pro-lifers argue that Roe is comparable to the Dred Scott decision in that it depersonified a class of human beings. It is this writer's contention that the unborn child is in fact a human being, a complete physical human organism, in the earliest stages of development. But the fact of the matter is that pro-life beliefs are not required to recognize Roe as a judicial usurpation of power.
Overturning Roe would not necessarily make abortion illegal. It would simply bring the issue back to the states, as is appropriate under the Tenth Amendment, for debate. As states made abortion legal before Roe was decided, it would remain legal in many places afterward unless and until pro-lifers can persuade majorities in each state to agree with them.
State and local governments may also be abusive of individual rights. We saw this most egregiously under the Jim Crow laws requiring racial segregation and we see it on a smaller scale still with punitive asset forfeiture laws, rent control and anti-freedom gun laws. Yet decentralized power, rather than an all-powerful central government, still offers the greatest potential for individual freedom and the most accessible escape routes from tyranny. Pro-choice libertarians who believe the possibility of state abortion restrictions justifies federal action by unelected officials should consider the greater federal abuses of power they are opening themselves up to through extra-constitutional government.
After many years of small, relatively limited government, the constitutional restraints on federal power finally broke down because too many Americans were willing to ignore the Constitution when it suited their personal preferences. It would be a shame if libertarians imitated this example in order to preserve an outcome on abortion that some of them happen to favor.