# The Constitution does not address abortion? Really?
**URL:** https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570
**Category:** Great Debates
**Created:** [October 12, 2012, 10:23pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570 "2012-10-12T22:23:50Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)
#### Post date: [October 12, 2012, 10:23pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/1 "2012-10-12T22:23:50Z")
For the people who think the Constituion does address abortion, from your constitutional viewpoint, would it be constitutionally permissilbe for the state of New York to require all pregnancies be aborted? What if the federal government required it? What if the law only covered pregnancies in certain situations, like the pregnant girl was under 16?
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### Author:  [@IvoryTowerDenizen](https://boards.straightdope.com/u/IvoryTowerDenizen)
#### Post date: [October 12, 2012, 10:30pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/2 "2012-10-12T22:30:40Z")
> [@Naive\_Evian](#):
>
> For the people who think the Constituion does address abortion, from your constitutional viewpoint, would it be constitutionally permissilbe for the state of New York to require all pregnancies be aborted? What if the federal government required it? What if the law only covered pregnancies in certain situations, like the pregnant girl was under 16?
Those who believe the Constitution addresses abortion, believes it does so by the Constitution’s protection of privacy. None of your examples protect privacy, they invade privacy.
I’ve always contended that this why we need to all be pro-choice and allow abortion to be legal and regulated like any medical procedure- the flip side of outlawing abortion is to require it.
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### Author:  [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)
#### Post date: [October 12, 2012, 10:31pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/3 "2012-10-12T22:31:33Z")
I meant to say, “does NOT address.”
Sorry for the fuck up.
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### Author:  [@IvoryTowerDenizen](https://boards.straightdope.com/u/IvoryTowerDenizen)
#### Post date: [October 12, 2012, 10:32pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/4 "2012-10-12T22:32:20Z")
That’s an important word, there. 😃
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### Author:  [@zoid](https://boards.straightdope.com/u/zoid)
#### Post date: [October 12, 2012, 10:35pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/5 "2012-10-12T22:35:38Z")
> [@IvoryTowerDenizen](#):
>
> the flip side of outlawing abortion is to require it.
You lost me there. Are you saying we have to either outlaw it or require it? That’s kind of like saying “now that prohibition has been repealed everyone MUST drink a six pack a day”. I’m sure I’m misunderstanding you but a little clarification would be appreciated.
ETA - are you simply pointing out the pointlessness of the two extreems?
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### Author:  [@IvoryTowerDenizen](https://boards.straightdope.com/u/IvoryTowerDenizen)
#### Post date: [October 12, 2012, 10:38pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/6 "2012-10-12T22:38:37Z")
> [@zoid](#):
>
> You lost me there. Are you saying we have to either outlaw it or require it? That’s kind of like saying “now that prohibition has been repealed everyone MUST drink a six pack a day”. I’m sure I’m misunderstanding you but a little clarification would be appreciated.
What I’m saying is that we have a precedent where the government can make reproductive decisions, today it might be to outlaw abortion, but in the future the government’s position might change to require it under certain circumstances. If the government believes it can weigh in on this personal medical decision, the right to do so is set.
ETA: No, I’m not. I believe abortion should be regulated as any legal medical procedure- funded, left up to doctors, no gag rules etc. The science and medicine and individual morality should dictate its regulation, not politics. People who want to outlaw abortion, _in toto_, should consider the legal ramifications of having such policies about private medical procedures and especially abortions.
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### Author:  [@zoid](https://boards.straightdope.com/u/zoid)
#### Post date: [October 12, 2012, 10:43pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/7 "2012-10-12T22:43:19Z")
Better - thanks.
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### Author:  [@IvoryTowerDenizen](https://boards.straightdope.com/u/IvoryTowerDenizen)
#### Post date: [October 12, 2012, 10:47pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/8 "2012-10-12T22:47:30Z")
🆒 Cool.
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### Author:  [@zoid](https://boards.straightdope.com/u/zoid)
#### Post date: [October 12, 2012, 10:55pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/9 "2012-10-12T22:55:26Z")
Now that we’ve got that little hijack of mine out of the way…
**Naive Evian** perhaps you could point out where in the constitution you believe abortion is addressed?
The way I read the 10th amendment; “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” is that unless the constitution specifically gives the federal government jurisdiction it does not have it.
I would give this as an example of the fact that the constitution does not address abortion because I can find no where it grants the federal government that kind of power and because of that omission the 10th says it in fact does not have that power.
I would further suggest that the 14th amendment, section one, defines a US citizen as “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.” and that the argument could be made that a fetus does not enjoy protection under this definition.
I’m no lawyer or constitutional scholar so I’m sure I’ll be corrected shortly on the point I have wrong.
BTW, just for the record I loath the very idea of abortion but I’m not about to say everyone must follow my belief system.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [October 12, 2012, 11:03pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/10 "2012-10-12T23:03:47Z")
> [@zoid](#):
>
> I would further suggest that the 14th amendment, section one, defines a US citizen as “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.” and that the argument could be made that a fetus does not enjoy protection under this definition.
Per Roe v. Wade, true, but thankfully, as far as fetal homicide laws are concerned, some states say yes.
Of course fetal homicide laws concern an outside actor and have been upheld by the US SC.
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### Author:  [@TriPolar](https://boards.straightdope.com/u/TriPolar)
#### Post date: [October 12, 2012, 11:05pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/11 "2012-10-12T23:05:14Z")
> [@IvoryTowerDenizen](#):
>
> What I’m saying is that we have a precedent where the government can make reproductive decisions, today it might be to outlaw abortion, but in the future the government’s position might change to require it under certain circumstances. If the government believes it can weigh in on this personal medical decision, the right to do so is set.
You are incorrect. The precedent is that the government can’t make reproductive decisions except in the extreme cases. Even those extreme cases are still being fought out. Your premise is like saying that the government can ban speech because the Constitution says that it can’t.
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### Author:  [@IvoryTowerDenizen](https://boards.straightdope.com/u/IvoryTowerDenizen)
#### Post date: [October 12, 2012, 11:09pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/12 "2012-10-12T23:09:30Z")
> [@TriPolar](#):
>
> You are incorrect. The precedent is that the government can’t make reproductive decisions except in the extreme cases. Even those extreme cases are still being fought out. Your premise is like saying that the government can ban speech because the Constitution says that it can’t.
I think it’s more nuanced than that. The Constitution explicitly protects free speech but not explicity abortion, so all abortion protections have been through legal actions.
However, I’m speaking more philosophically than based on case or Constitutional law.
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### Author:  [@TriPolar](https://boards.straightdope.com/u/TriPolar)
#### Post date: [October 12, 2012, 11:12pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/13 "2012-10-12T23:12:37Z")
> [@IvoryTowerDenizen](#):
>
> I think it’s more nuanced than that. The Constitution explicitly protects free speech but not explicity abortion, so all abortion protections have been through legal actions.
>
> However, I’m speaking more philosophically than based on case or Constitutional law.
Well I wasn’t making the comparison based on the technical issues. But Roe v. Wade doesn’t say the government makes reproductive decisions. It says that for the first two trimesters of pregnancy that it can’t and it’s none of the government’s business.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [October 12, 2012, 11:16pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/14 "2012-10-12T23:16:16Z")
> [@Naive\_Evian](#):
>
> For the people who think the Constituion does address abortion, from your constitutional viewpoint, would it be constitutionally permissilbe for the state of New York to require all pregnancies be aborted? What if the federal government required it?
The 14th AM was ratified as a state remedy to correlate with the federal 5th AM as far as Due Process of law is concerned.
At one time the US SC ruled that the Bill of Rights itself was never intended to be applicable to the states, but as we know now, most of it is.
The SC answers to no one, even Congress when you get down to it, impeachment would not mean too much, it’s not like an impeached justice could not find work afterwards.
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### Author:  [@Voyager](https://boards.straightdope.com/u/Voyager)
#### Post date: [October 13, 2012, 12:53am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/15 "2012-10-13T00:53:04Z")
> [@IvoryTowerDenizen](#):
>
> I’ve always contended that this why we need to all be pro-choice and allow abortion to be legal and regulated like any medical procedure- the flip side of outlawing abortion is to require it.
Well, not require it, but if a woman has no right to control her reproduction by having an abortion, you might say she has no right to prevent an abortion, if the government so chose. When life begins is definitely not in the Constitution.
Also, if vaginal probes are constitutional, it is clear constitutional to go a bit further and kill the fetus. Again, the Constitution says nothing about whether the fetus is a person.
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### Author:  [@Untoward\_Parable](https://boards.straightdope.com/u/Untoward_Parable)
#### Post date: [October 13, 2012, 8:08am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/16 "2012-10-13T08:08:41Z")
Privacy provisions, freedom of religion, cruel and unusual ect. Abortion laws that interfere with early pregnancy before the child has any brain function are nonsense in any free society.
Convince people that they shouldn’t get abortions, and/or support measures that reduce their occurrence like access to birth control, better financial opportunities for young people ect.
Why doesn’t the church try to outlaw greed or coveting other men’s wives too? Maybe this is just the best one if you’re religious and a misogynist at the same time.
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### Author:  [@zoid](https://boards.straightdope.com/u/zoid)
#### Post date: [October 13, 2012, 8:32am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/17 "2012-10-13T08:32:57Z")
> [@Untoward\_Parable](#):
>
> Privacy provisions, freedom of religion, cruel and unusual ect. Abortion laws that interfere with early pregnancy before the child has any brain function are nonsense in any free society.
>
> Convince people that they shouldn’t get abortions, and/or support measures that reduce their occurrence like access to birth control, better financial opportunities for young people ect.
>
> Why doesn’t the church try to outlaw greed or coveting other men’s wives too? Maybe this is just the best one if you’re religious and a misogynist at the same time.
For politicians it’s an easy topic to latch on to. If politicians tried to outlaw lust or greed it would be a sparse few who could stand up to the hypocrisy. Hell, none of us probably could;
Ever stole a candy bar? GUILTY!
Ever grab a girls boob in high school? GUILTY!
But everyone hasn’t had a relationship that involved abortion. It’s a concrete example of something people who are just as flawed as the rest of us can wrap their self-induced-superiority around and point at others and shout “SINNER!”
As far as “The Church” goes though, taking a life is a motral sin.
You might disagree with the concept “sin” and/or “life” but that’s the way it’s seen. I don’t ever see that changing.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 13, 2012, 11:44am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/18 "2012-10-13T11:44:57Z")
> [@Naive\_Evian](#):
>
> For the people who think the Constituion does address abortion, from your constitutional viewpoint, would it be constitutionally permissilbe for the state of New York to require all pregnancies be aborted? What if the federal government required it? What if the law only covered pregnancies in certain situations, like the pregnant girl was under 16?
No, none of your examples would be permissible.
The federal constitution does not, in my view, grant the federal government the power to regulate abortion. Since the federal government is one of limited, enumerated powers, the Feds can’t make the laws you hypothesize.
The state of New York does have plenary power, in contrast to the federal government. But carrying a pregnancy to completion is a right that is “firmly rooted in our nation’s history and traditions,” and is thus a right under the federal constitution’s Due Process Clause.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [October 13, 2012, 1:03pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/19 "2012-10-13T13:03:49Z")
> [@Naive\_Evian](#):
>
> For the people who think the Constituion does address abortion, from your constitutional viewpoint, would it be constitutionally permissilbe for the state of New York to require all pregnancies be aborted? What if the federal government required it? What if the law only covered pregnancies in certain situations, like the pregnant girl was under 16?
_Roe v. Wade_ is the wrong case law to look at.
Yes, it would be Constitutional as an extension of _Buck v. Bell_. Note that it must pass strict scrutiny but if couched in terms of the impact on the children, and children referring to both the mother and the baby, and the cost to society I think an argument could be made that the state had a compelling interest in the case.
But Cad, that was for eugenics, not teenage pregnancy. Then explain why Oregon [sterilized “wayward girls”](http://news.google.com/newspapers?id=ZFBWAAAAIBAJ&sjid=jesDAAAAIBAJ&pg=6596,4132204) up until WW2. But Cad, surely _Griswold_ or _Roe v. Wade_ overturned _Buck v. Bell_. Read the above article. The last forced sterilization in Oredon was 8 years after _Roe_.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [October 13, 2012, 1:09pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/20 "2012-10-13T13:09:37Z")
> [@Bricker](#):
>
> The state of New York does have plenary power, in contrast to the federal government. But carrying a pregnancy to completion is a right that is “firmly rooted in our nation’s history and traditions,” and is thus a right under the federal constitution’s Due Process Clause.
Where is that quote from because _Skinner_ used the Due Process to say if you sterilize one you sterilize all which is exactly what to OP proposes and I think _Buck_ invalidated that history and tradition of which you quote.
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