What President Biden Still Doesn’t Get About the Dobbs Decision
At a “get-out-the-vote-for-Democrats” speech this week, President Biden held out like a carrot the promise of a new national right to abortion. He said:
That is why these midterm elections are so critical to elect more Democratic senators to the United States Senate and more Democrats to keep control of the House of Representatives. If we do that, here is the promise I make to you and the American people. The first bill I will send to the Congress will be to codify Roe v. Wade. When Congress passes it I will sign it in January, 50 years after Roe was first decided… Together we will restore the right to choose for every woman in every state in America.
If you’re pro-life, you are surely concerned about Biden’s new mission to revive the bogus “right” to end innocent life in the womb, and the prospect of a Democrat majority that could do it. If you’re a lawyer or a jurist, you may be shaking your head at our President’s bulldog-like loyalty to a legally absurd precedent.
But in fact, every American who cares about the rule of law should take issue with Biden’s vow, because it is a pledge to exercise raw political power at the expense of constitutional integrity.
Looking for a Power Source
The main reason Roe was wrong the day it was decided is because the Constitution confers neither a general “right to privacy” nor a specific “right to abortion.” In claiming such rights, and then creating a whole scheme of law around them, the Supreme Court exercised power that it simply does not have. Remember: the federal government is one of specific, named powers. If a power is not given to it in the Constitution, the federal government does not have that power.
In Dobbs v. Jackson Women’s Health Organization, the current Court finally corrected the heinous judicial coup that was Roe. But only after Roe had claimed more than 62 million innocent lives. Now President Biden urges the legislative branch to plunge headlong into the same kind of power grab. Nowhere does our Constitution give Congress the power to declare new rights and then make laws to enforce them.
President Biden’s flailing attempt to ground his quest in law was this: “There is a thing called the Ninth Amendment that says there is a right to privacy.” While he is correct that there is a thing called the Ninth Amendment, he is flat wrong to claim that it says there is a right to privacy. What it actually says is, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others contained by the people.” That’s it.
The Ninth Amendment does not confer any rights. It just expresses the framers’ belief in natural law. There are rights that are not named in the Constitution. But neither the Court, nor Congress, nor the President, is given power to decide what they are or create laws protecting them. This is where the Tenth Amendment comes in, to clarify that these and all other powers not given to the feds are reserved for the states and the people.
The president wants Congress to nationalize the issue of abortion. There is just one legitimate way Congress can do that, and that is the process set forth in Article V of the Constitution. Congress could propose an amendment either to create a right to abortion or else to explicitly recognize that unborn human beings are “persons” with the right to life. But even if Congress took this route, three-fourths of the states would have to ratify the proposed change.
It’s All About Federalism
There’s just no escaping it: We have a federal system, and the states play a big role in it. It would be nice and convenient for special interests if they could exert power on just one body (Congress) to impose their preferred policy on the whole country. But American government was designed precisely to prevent that.
In our system, the bulk of policy-making power is left with the people’s representatives in the states. And that’s a good thing, because ordinary citizens like us have much better access to state governments. The states can reflect regional differences. And they can respond more quickly to advances in science and technology, as well as cultural shifts.
Those who would govern the American people need to understand and respect the ways the Constitution prescribes and limits their power. Even good ideas become bad ideas when those who lack proper authority seek to impose them on us. When it comes to abortion, there’s simply no way of getting around the states.
Rita Peters is a constitutional attorney, the author of Restoring America’s Soul: Advancing Timeless Conservative Principles in a Wayward Culture and co-host of the weekly radio program, “Crossroads: Where Faith and Culture Meet.”