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The Federal Abortion Amendment of 1868
The Federal Abortion Amendment of 1868 By David W. New, Esq. The Covenant News ~ February 09, 2005
In 1973, mass abortion became legal in the United States. This occurred when the U.S. Supreme Court issued their opinion in Roe v. Wade. However, most Americans are unaware that there has been a Federal Abortion Amendment on the books since 1868. According to the U.S. Supreme Court, a federal amendment to allow abortion on demand has existed since the days of the Civil War. It is doubtful that anyone knew it at the time, but when the American people ratified the Fourteenth Amendment they passed a Federal Abortion Amendment to the U.S. Constitution. According to the Supreme Court this is a true statement. The so called ‘right to an abortion’ is based on the Fourteenth Amendment which was ratified in 1868. The Fourteenth Amendment is one of three amendments known as the Civil War Amendments. The purpose of this article is to persuade the reader that the ‘right to an abortion’ cannot be found in the Constitution. Neither the framers of the Constitution in 1787 nor the framers of the Fourteenth Amendment in 1868 ever intended to create a right to an abortion. I will argue that the whole body of law involving abortion is nothing more than a fabrication invented by the members of the Supreme Court. I will discuss why this is true and suggest some other areas in which the Court has been creative through the Fourteenth Amendment. Our discussion will begin with the legal basis for abortion in the United States and the link between judicial activism and the Fourteenth Amendment. Finally, I will discuss the true meaning of the Fourteenth Amendment and suggest that the Supreme Court’s argument for abortion is a hopeless contradiction.
THE LEGAL BASIS FOR ABORTION: THE FOURTEENTH AMENDMENT
In 1992, the U.S. Supreme Court stated the legal basis for abortion. According to the Supreme Court, the constitutional right to an abortion exists because of the Fourteenth Amendment. The Fourteenth Amendment has a Due Process Clause. The Due Process Clause in the Fourteenth Amendment is the current Federal Abortion Amendment according to the High Court. For the benefit of those who do not know what the current Federal Abortion Amendment says, please allow me to quote it for you. It says: ” . . . nor shall any State deprive any person of life, liberty, or property, without due process of law.” Admittedly, the word ‘abortion’ does not appear in the clause. Indeed, the word ‘abortion’ does not appear anywhere in the Constitution. But according to the Supreme Court the word ‘abortion’ is in the Due Process Clause. In their opinion, the right to an abortion is in the word “liberty” in the Due Process Clause. This is what Justice Sandra Day O’Connor said in 1992. Note 1. Thus, we could substitute the word ‘abortion’ for the word “liberty” if we wanted to. Therefore, the Fourteenth Amendment is in a sense the current Federal Abortion Amendment. The first time the Supreme Court said that there was a federal right to an abortion was in 1973. This is the year the Supreme Court decided the Roe v. Wade case. However, in Roe v. Wade, the Supreme Court did not clearly state what the legal basis for abortion was. This did not occur until 19 years later in 1992. It is likely that the Supreme Court based Roe v. Wade on the word “liberty” in the Due Process Clause but it is not clear. Note 2.
JUDICIAL ACTIVISM AND THE FOURTEENTH AMENDMENT
The Supreme Court has used the Fourteenth Amendment for other purposes besides making abortion legal. In 1962, the Fourteenth Amendment was converted into a ‘Federal School Prayer Amendment.’ In this instance, the Fourteenth Amendment was used to ban all vocal prayer during classroom time in the public schools. This occurred in the Engel v. Vitale case. In effect, the word “liberty” in the Due Process Clause was interpreted to mean ‘school prayer’ or ‘prayer in the public schools.’ The Fourteenth Amendment was used again in the following year to remove the Bible as a text to teach moral values to public school students. Thus, the Fourteenth Amendment gave the Supreme Court the ultimate power over the separation of church and state in America. However, this is not all it did. If the High Court is correct, when the Fourteenth Amendment was ratified in 1868, the highest judicial body in the United States was converted into a super ‘National School Board.’ According to the Supreme Court, the Fourteenth Amendment gave them the ultimate control over the nation’s public school curriculum. For example, in 1987, the National School Board ruled that only Charles Darwin’s theory of evolution was a proper subject for the public school curriculum. Note 3. More recently, the drum beats from the Court have sounded again but this time in a new direction. In 2003, the U.S. Supreme Court converted the Fourteenth Amendment into a ‘Federal Sodomy Amendment.’ This occurred in the infamous Lawrence v. Texas case. Here the High Court felt compelled to protect two men engaging in homosexual sex. Unless something is done to stop them, it is likely that the Supreme Court will use the Fourteenth Amendment as a ‘Federal Gay Marriage Amendment.’ Right now the Court can use the Fourteenth Amendment to legalize gay marriage in the United States. All that is needed is for five members on the Supreme Court to agree that the word “liberty” in the Due Process Clause includes the right of homosexuals to marry. It’s that simple.
It should be obvious that there is a strong link between judicial activism and the Fourteenth Amendment. When conservatives complain about judicial activism in the courts, in many cases they are really talking about the Fourteenth Amendment. The Fourteenth Amendment has become a ‘wild card’ at the courthouse. The Supreme Court can force any social policy on the American people simply by manipulating the word “liberty” in the Due Process Clause. Activist judges can dictate a policy for the United States Government in a manner that neither the President nor the Congress of the United States could ever achieve. Indeed, when it comes to social issues, the U.S. Supreme Court has more power than the President, the Congress and all state and local governments combined. This is true because it is difficult to reverse the Court’s decisions. It is difficult to amend the U.S. Constitution. As an institution, the U.S. Supreme Court has truly become America’s politburo. Given the above record of abuse by the Court, the fact that the ‘right to an abortion’ is based on the Fourteenth Amendment should alert the reader that the claim is probably bogus.
THE TRUE MEANING OF THE FOURTEENTH AMENDMENT
A person might be tempted to think that the Fourteenth Amendment is a bad amendment. This would be a mistake. The Fourteenth Amendment is a good amendment. The problem is not with the Fourteenth Amendment but with its abuse. Shortly after the Civil War, the United States passed three amendments to the Constitution known as the Civil War Amendments. The purpose of these amendments was to correct the injustice of slavery in America. The first of the Civil War Amendments was the Thirteenth Amendment. This was passed in 1865. The Thirteenth Amendment said that slavery was no longer legal in the United States. At last, the issue that almost destroyed the constitutional convention in Philadelphia was finally settled. The curse of slavery was ended in America. The Fifteenth Amendment was passed in 1870. The Fifteenth Amendment protected the right of African American men to vote. The Fourteenth Amendment was passed in 1868. The Fourteenth Amendment reversed the Supreme Court’s infamous Dred Scott decision of 1857. In Dred Scott, the Supreme Court said, among other things, that African Americans were not citizens of the United States. Section 1 of the Fourteenth Amendment made all African Americans citizens of the United States and of the state in which they live. Section 1 of the Fourteenth Amendment says: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus, an amendment that was intended to correct an injustice in America has been hijacked by activist judges to promote their personal opinions.
THE TRUE MEANING OF THE WORD “LIBERTY”
The Due Process Clause says: ” . . . nor shall any State deprive any person of life, liberty, or property, without due process of law.” To the framers of the Fourteenth Amendment, the word “liberty” in the Due Process Clause referred to personal bodily freedom. There is no historical evidence to suggest that they believed it referred to abortion, family law, or to prayer in the public schools. The purpose of the Due Process Clause was to make sure that everyone had a fair trail. The Due Process Clause answers this question: ‘When may the government punish a person?’ The answer is the government may deprive any person of life, liberty or property if it is done according to due process of law. Due Process of Law is another way of saying that there must be a ‘fair trial.’ To deprive a person of “life” refers to capital punishment. To deprive a person of “liberty” refers to incarceration. To deprive a person of “property” refers to monetary fines (traffic tickets) or seizures of property by the government. Thus, the Due Process Clause is largely concerned with criminal matters. The Fourteenth Amendment was passed to insure that African Americans as well as everyone else would receive a fair trial during a criminal proceeding. It was not intended to become a ‘wild card’ at the courthouse.
THE FIFTH AMENDMENT REVEALS A MASSIVE CONTRADICTION
There is a massive contradiction in the Supreme Court’s argument for abortion. The problem centers on the word “liberty” in the Due Process Clause in the Fourteenth Amendment. There are two Due Process Clauses in the U.S. Constitution. There is one in the Fifth Amendment and there is one in the Fourteenth Amendment. The Due Process Clause in the Fifth Amendment was the model for the one in the Fourteenth Amendment. The Fifth Amendment’s Due Process Clause says the same thing as the one in the Fourteenth Amendment. It says: “. . . nor [shall any person] be deprived of life, liberty, or property, without due process of law.” [Words added]. It means that the Federal Government cannot deprive any person of their life, liberty or property unless there is a fair trail. The Due Process Clause in the Fifth Amendment originally applied only to the Federal Government. Therefore, after the Civil War, in order to require the state governments to be bound by the same standard, the Due Process Clause was added to the Fourteenth Amendment.
The problem is that the Supreme Court interprets the word “liberty” in two very different ways. The way the Supreme Court interprets the word “liberty” in the Fourteenth Amendment is very different from the way they interpret the word “liberty” in the Fifth Amendment. For example, to date, the Supreme Court has never said that there is a Fifth Amendment right to an abortion! Most Americans know that the purpose of the Fifth Amendment is to protect you and your rights during a criminal proceeding. How many times have we heard: ‘On the advice of my counsel, I plead the Fifth Amendment.’ Even Hollywood knows what the Fifth Amendment is for. And yet the Supreme Court continues to argue that the word “liberty” in the Fourteenth Amendment refers to abortion even though such a claim for the Fifth Amendment would be absurd. If the word “liberty” in the Fifth Amendment cannot logically refer to abortion then why should it be any different for the Fourteenth Amendment? For more than 200 years, the word “liberty” in the Fifth Amendment has meant personal bodily freedom. Why should it mean something totally different in the Fourteenth Amendment? This is a good question. Interestingly, at one time, the Supreme Court said that the word “liberty” in the Fifth and Fourteenth Amendments should mean the same thing. Note 4.
The reality is the entire body of law for abortion is a sham, a judicial fraud. This is also true for issues involving school prayer and homosexuality. For example, no one has ever said that prayer in the public schools violates the Fifth Amendment. Not even the ACLU will claim that Bible reading violates the Fifth Amendment. And yet this is said about the Fourteenth Amendment all the time. The inconsistency here is obvious. The way the Court interprets the word “liberty” in the Fourteenth Amendment is a hopeless contradiction. There can be no question that the Court uses the Fourteenth Amendment for political purposes. The Fifth Amendment proves that the Supreme Court is engaging in judicial activism. It is time for this nonsense to stop. Abortion in America is a source of great pain and suffering for everyone. However, the horror of abortion becomes even more painful when the so called ‘right to an abortion’ is proven to be a complete fraud.
For a more in depth study of judicial activism and the Bill of Rights, read my booklet: The First Amendment and the Bill of Rights for Beginners. For more information visit: www.myfirstamendment.us
Note 1. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 at 846 (1992). Note 2. Roe v. Wade, 410 U.S. 113 (1973). Note 3. Edwards v. Aguillard, 482 U.S. 578 (1987). Note 4. Heiner v. Donnan, 285 U.S. 312 at 326 (1932).
David W. New is an attorney and author in the Washington, D.C. area. He graduated from the Georgetown University Law Center in 1989. In 2002, he graduated from The National Litigation Academy sponsored by the Alliance Defense Fund. In January 2003, he received an honorary Doctor of Divinity degree from the Methodist Episcopal Church USA. David is the author of several publications supporting the original intent of the Constitution.