# The Constitution does not address abortion? Really? **URL:** \ **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:** 2
**Author:** ![Naive\_Evian](https://avatars.discourse-cdn.com/v4/letter/n/6a8cbe/32.png) [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)\ **Post date:** [October 13, 2012, 7:32pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/21 "2012-10-13T19:32:00Z")
> [@Bricker](#): > > 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. Can you point to anything that says the right to carry a pregnancy to term is a right that is “firmly rooted in our nation’s history and traditions”? Perhaps cases that addressed the issue in the 1800s. Or perhaps a some philosophical text or legal paper addressing the issue from the same period. Or any historical text that addressed the right to carry a pregnancy to term. When did the question of the right to carry a pregnancy to term–something completely different from sterilization–ever come up? Why isn’t that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State” equally firmly rooted? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 13, 2012, 8:03pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/22 "2012-10-13T20:03:21Z")
Do _you_ think the Constitution addresses abortion? If so, where? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [October 13, 2012, 8:35pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/23 "2012-10-13T20:35:18Z")
> [@Untoward\_Parable](#): > > 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. Adultery is still illegal in some states. [Cite](http://en.wikipedia.org/wiki/Adultery#United_States_2) > [@](#): > > In the United States, laws vary from state to state. In those states where adultery is still on the statute books (although rarely prosecuted), penalties vary from life sentence (Michigan)[47] to a $10 fine (Maryland) to a Class B misdemeanor (New York)[48] to a Class I felony (Wisconsin).[49] In the state of South Carolina, the criminal fine for adultery is a fine no greater than $500 and/or imprisonment for no more than one year [South Carolina code 16-15-60], yet the divorce laws codified at South Carolina Code Section 20-3-60(A) deny alimony to the adulterous spouse, which in some cases can cost the adulterous spouse millions of dollars in future income.[50] ---
**Author:** ![Naive\_Evian](https://avatars.discourse-cdn.com/v4/letter/n/6a8cbe/32.png) [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)\ **Post date:** [October 13, 2012, 8:41pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/24 "2012-10-13T20:41:33Z")
> [@Czarcasm](#): > > Do _you_ think the Constitution addresses abortion? If so, where? Part of due process is substantive due process, which includes the protection of liberty. Part of liberty is the ability to control one’s own body and make decisions about personhood. Edit – Liberty would equally protect a woman from having the government force an abortion on her? ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [October 13, 2012, 8:59pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/25 "2012-10-13T20:59:34Z")
> [@Naive\_Evian](#): > > Part of due process is substantive due process, which includes the protection of liberty. Part of liberty is the ability to control one’s own body and make decisions about personhood. > > Edit – Liberty would equally protect a woman from having the government force an abortion on her? That in no way answers the question asked. It’s nothing but meaningless gibberish. Can we move this to the pit please? ---
**Author:** ![Naive\_Evian](https://avatars.discourse-cdn.com/v4/letter/n/6a8cbe/32.png) [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)\ **Post date:** [October 13, 2012, 9:04pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/26 "2012-10-13T21:04:04Z")
> [@zoid](#): > > That in no way answers the question asked. It’s nothing but meaningless gibberish. > Can we move this to the pit please? Meaningless gibberish that has been endorsed by the Supreme Court? ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 13, 2012, 9:15pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/27 "2012-10-13T21:15:32Z")
> [@Naive\_Evian](#): > > Meaningless gibberish that has been endorsed by the Supreme Court? The Supreme Court does not endorse your gibberish. You can pick enough words out of SCOTUS decisions to say anything you want. You don’t seem to understand that the body of conflict on this subject concerns who is a person and when they become one. Anything about the established rights of a person is pointless until the definition of person is agreed upon. ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [October 13, 2012, 9:31pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/28 "2012-10-13T21:31:18Z")
> [@Naive\_Evian](#): > > Meaningless gibberish that has been endorsed by the Supreme Court? Please cite the Supreme Court ruling your statements come from. I will gladly retract my statement when you show me where your statements are “endorsed by the Supreme Court”. If you cannot provide a citation I expect an apology. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 13, 2012, 9:50pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/29 "2012-10-13T21:50:33Z")
> [@TriPolar](#): > > The Supreme Court does not endorse your gibberish. You can pick enough words out of SCOTUS decisions to say anything you want. > > You don’t seem to understand that the body of conflict on this subject concerns who is a person and when they become one. Anything about the established rights of a person is pointless until the definition of person is agreed upon. And it was under\* Roe \*that pointed to the 14th Amendment “All persons born or naturalized in the United States …” that personhood in the US begins at birth (since you cannot be naturalized in utero). It may be a tortured reading but it’s the best we have so far. ---
**Author:** ![Naive\_Evian](https://avatars.discourse-cdn.com/v4/letter/n/6a8cbe/32.png) [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)\ **Post date:** [October 13, 2012, 10:12pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/30 "2012-10-13T22:12:33Z")
> [@zoid](#): > > Please cite the Supreme Court ruling your statements come from. > > I will gladly retract my statement when you show me where your statements are “endorsed by the Supreme Court”. > > If you cannot provide a citation I expect an apology. "Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, sinceMuglerv.Kansas,123 U. S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them.“Danielsv.Williams,474 U. S. 327, 331 (1986).” “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Both from Casey v. Planned Parenthood, 505 US 833. ---
**Author:** ![Naive\_Evian](https://avatars.discourse-cdn.com/v4/letter/n/6a8cbe/32.png) [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)\ **Post date:** [October 13, 2012, 10:20pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/31 "2012-10-13T22:20:28Z")
> [@TriPolar](#): > > The Supreme Court does not endorse your gibberish. You can pick enough words out of SCOTUS decisions to say anything you want. > > You don’t seem to understand that the body of conflict on this subject concerns who is a person and when they become one. Anything about the established rights of a person is pointless until the definition of person is agreed upon. The Court leaves the decision of when personhood starts to each individual. The right to make that decision for oneself is at the heart of liberty. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 13, 2012, 10:25pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/32 "2012-10-13T22:25:57Z")
> [@Naive\_Evian](#): > > The Court leaves the decision of when personhood starts to each individual. The right to make that decision for oneself is at the heart of liberty. I agree with that. But it doesn’t make the matter settled, nothing is written in stone. And it conflicts with the premise of your OP. ---
**Author:** ![Naive\_Evian](https://avatars.discourse-cdn.com/v4/letter/n/6a8cbe/32.png) [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)\ **Post date:** [October 13, 2012, 10:32pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/33 "2012-10-13T22:32:47Z")
> [@TriPolar](#): > > I agree with that. But it doesn’t make the matter settled, nothing is written in stone. And it conflicts with the premise of your OP. How does it conflict with my OP? The OP was addressed to people who do not think the Constitution addresses abortion. I think that Constitution addresses abortion, and was I asking those who believe it does not (like Justice Scalia), if they really believe that the Constitution is silent on abortion, meaning there would be no constitutional problem with requiring an abortion. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [October 13, 2012, 10:40pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/34 "2012-10-13T22:40:19Z")
> [@IvoryTowerDenizen](#): > > What I’m saying is that we have a precedent where the government can make reproductive decisions, Depending on your point of view abortion is not a reproductive decision, as the reproduction _has_ already taken place, it is the decision to bring or not to bring that reproduction along past it’s existence in the liquid environment of the womb into the air breathing environment. That decision has been typically left up to the mother. As for the OP’s example of state forced abortion, I can think of no greater crime against any sentient being then separating a mother from her child, nor can I think of no greater wrath then that of a momma bear on those who harm her cub. The state would not last long if they attempted this, karma would destroy it. So your example is really not possible except in a very temporal sense and the results would unfold over time. There are forces in our world much more powerful then any state or constitution. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 13, 2012, 10:43pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/35 "2012-10-13T22:43:25Z")
> [@Naive\_Evian](#): > > How does it conflict with my OP? The OP was addressed to people who do not think the Constitution addresses abortion. I think that Constitution addresses abortion, and was I asking those who believe it does not (like Justice Scalia), if they really believe that the Constitution is silent on abortion, meaning there would be no constitutional problem with requiring an abortion. Well I’ve misunderstood your point then. Your OP implied (to me) that you didn’t believe SCOTUS had rendered the decision to the individual. Also, saying the Constitution addresses abortion is somewhat confusing. As I’m sure you know, it doesn’t mention abortion specifically. I think you mean something other than ‘address’. ---
**Author:** ![Opus1](https://avatars.discourse-cdn.com/v4/letter/o/858c86/32.png) [@Opus1](https://boards.straightdope.com/u/Opus1)\ **Post date:** [October 14, 2012, 4:44am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/36 "2012-10-14T04:44:43Z")
> [@Naive\_Evian](#): > > Part of liberty is the ability to control one’s own body and make decisions about personhood. And yet there are many laws that inhibit my control of my own body. Laws against using certain drugs, gambling, suicide, etc. Even if you narrow the issue to issues of sex/family/reproduction, you still have laws against prostitution, nude dancing, obscenity, consensual adult incest, etc. It’s difficult to come up with a principle that justifies abortion rights without also justifying the right to a large number of other things that most people (including the Supreme Court) do not view as fundamental rights. ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [October 14, 2012, 5:38am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/37 "2012-10-14T05:38:19Z")
The SCOTUS has addressed substantive rights - granted. However you did not answer the question asked. The question was “where it was presented in the US Constitution”. It’s not. Furthermore when you say: [QUOTE=Naive Evian] "I think that Constitution addresses abortion, and was I asking those who believe it does not (like Justice Scalia), if they really believe that the Constitution is silent on abortion, meaning there would be no constitutional problem with requiring an abortion. " [/QUOTE] you are completely ignoring the argument I made regarding the 10th amendment - I’ll recap… [QUOTE=zoid] 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. [/QUOTE] ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 14, 2012, 5:52am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/38 "2012-10-14T05:52:02Z")
> [@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. That doesn’t address the main argument pro-life legalists use. To them, it isn’t an issue of _the government_ making these decisions. Their argument is that the Constitution establishes two separate levels of government: the federal and states governments. The Constitution outlines the areas the federal government can regulate and says that all other areas can only be regulated by state governments. On this particular issue, they’d argue that there is nothing in the Constitution giving the federal government the power to regulate on abortions, health decisions, or privacy - so these areas are subject to state regulation. Their argument is the federal government can’t prohibit or mandate abortions - but a state government could legally do either. To these people, the problem with Roe v Wade was that the Supreme Court was ruling outside of its jurisdiction. ---
**Author:** ![Naive\_Evian](https://avatars.discourse-cdn.com/v4/letter/n/6a8cbe/32.png) [@Naive\_Evian](https://boards.straightdope.com/u/Naive_Evian)\ **Post date:** [October 14, 2012, 5:56am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/39 "2012-10-14T05:56:33Z")
> [@zoid](#): > > The SCOTUS has addressed substantive rights - granted. However you did not answer the question asked. The question was “where it was presented in the US Constitution”. It’s not. > > Furthermore when you say: > > you are completely ignoring the argument I made regarding the 10th amendment - I’ll recap… The Constitution does not specifically or expressly set out each thing it protects. It does not even specifically or expressly set out protecting liberty. It would be impossible to expressly or specifically set set out each thing it protects, which is why we have the 9th amendment. Read the 10th amendment again, it does not say, “The powers not specifically (or expressly) delegated.” There is no need for liberty or a woman’s right to choose to be specifically (or expressly) addressed. Liberty and the right to choose as covered by liberty are a part of due process. By your reading of the constitution, it would be constitutionally acceptable for the government to take people’s children away, and raise the children is a commune since parental rights are not specifically (or expressly) mentioned. There is nothing that requires things to be specifically or expressly mentioned. Due process covers more. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 14, 2012, 6:00am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/40 "2012-10-14T06:00:03Z")
> [@Little\_Nemo](#): > > To them, it isn’t an issue of _the government_ making these decisions. Their argument is that the Constitution establishes two separate levels of government: the federal and states governments. The Constitution outlines the areas the federal government can regulate and says that all other areas can only be regulated by state governments. > > On this particular issue, they’d argue that there is nothing in the Constitution giving the federal government the power to regulate on abortions, health decisions, or privacy - so these areas are subject to state regulation. Their argument is the federal government can’t prohibit or mandate abortions - but a state government could legally do either. > > To these people, the problem with Roe v Wade was that the Supreme Court was ruling outside of its jurisdiction. I think that’s just a tactical move\*\* Nemo\*\*. They’d also like to see an amendment to the Constitution making abortion illegal at the federal level. They just realize that isn’t working and are using states rights as the basis of their attack. The same could be said for their personhood arguments where they want to declare fertilized egg to be a person having the same rights existing under the Constitution which would legally make abortion murder. [Previous page](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570.md?page=1) [Next page](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570.md?page=3)