Talk:The Legality of Abortion
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references? citations?. aside from the fact that this is a piss-poor 10th amendment analysis anyway in that it does not reach to the fact that the 13th and 14th amendments intercede upon state's rights to a large degree. plus many more criticisms, mostly having to do with the legal definition of a person under the constitution, and if it is rational to extend this to a fetus. as brutal and heartless as this may sound, it needs to be addressed. not here though, take it to a forum.
The Supreme Court's decision in Roe v. Wade was a tremendous legal mistake. The Supreme Court interjected itself into what should have been a legislative matter. The Constitution doesn't address this issue, and as the Tenth Amendment affirms, on issues where the Constitution is mute, we have state and federal legislatures to write our laws. The Constitution is sort of the Bible for the United States of America, and the justices of the Supreme Court are essentially the theologians who decide what it means. They aren't supposed to write a new one. They're supposed to figure out what it means. When a change in the Constitution is needed, we have a mechanism to change it, which we've used more than twenty times.
It would be better for everybody if the matter of abortion was returned to the state legislatures. In that way the people's elected representatives can write the laws in accordance with the will of their electorates. We'd only have a hodgepodge of laws across the country, and in some areas abortion would be illegal if the electorate wants it that way. That's how democracy works.
What we call law is nothing more or less than the public's collective belief, their conviction of what right and wrong is. Whether it's about murder, kidnapping, or running a red light, society decides what the rules are. In a democratic republic, we do that through the legislature by electing people who share our views. That's how laws happen. We also set up a constitution, the supreme law of the land, which is very carefully considered because it decides what the other laws may and may not do, and therefore it protects us against our transitory passions. The job of the judiciary is to interpret the laws, or in this case the constitutional principles embodied in those laws, as they apply to reality. In Roe versus Wade, the Supreme Court went too far. It legislated; it changed the law in a way not anticipated by the drafters, and that was an error. All a reversal of Roe will do is return the abortion issue to the state legislatures, where it belongs.
If abortion becomes a legislative matter, and the legislature of the several states, as the Constitution terms them, will meet and decide for themselves if the voters want to be able to end the lives of their unborn babies or not.