The History & Future of Abortion In America

With Congressman Mike Gallagher's (R, WI) resignation from the House on April 19 the 2022 GOP midterm election red wave victory has now dwindled to effectively one vote: 217 to 213.  The original red wave five vote margin in January, 2023 was bad enough @ 223 to 212 but that majority has shrunk with George Santos being expelled (& replaced by Democrat Tom Suozzi) & four GOP resignations (McCarthy, Bill Johnson, Buck, & now Gallagher).  Democrat Brian Higgins, who resigned on February 2, will be replaced by Democrat Timothy Kennedy who won a special election to replace Higgins on April 30.  Also McCarthy will be replaced by a Republican in the May 21 special election in California CD 20 so that will be a pick up.

Republican commentators had forecast a red tsunami in the 2022 midterms by Republican candidates winning 245 House seats & expanding their total in the Senate to as many as 55 seats.  What else would you expect after two years of Biden's progressive onslaught on the country & his cognitive decline - which has only gotten worse since November, 2022.  

The basis of Republicans' 2022 enthusiasm for the probability, in their minds, for taking back control of both the House & Senate in a red wave was the historical fact that the sitting President's party loses congressional seats in midterm elections most of the time - especially ones, like in 2022, where three quarters of the citizens thought the country was going in the wrong direction.  But in addition to the poor House showing Republicans actually lost one seat in the Senate (Fetterman over Oz succeeding retiring Toomey) & two governors races - one flip in Arizona (Hobbs over Lake succeeding term limited Ducey) & one pick up in Maryland (Moore over Cox succeeding term limited Hogan).

In 2018 Democrats made a net gain (blue wave) of 41 House seats thereby putting a check on Trump's last two years in office - a typical check made regularly on all but a very few presidents in our history.  So why didn't the country put this type of check on Biden?  There were clues all over the place leading up to the 2022 midterm elections & they centered around abortion - as described below.

In June, 2022 the Supreme Court issued a landmark decision in Dobbs v. Jackson Women's Health Organization concluding that the Constitution does not protect the right to an abortion thereby overturning both Roe v. Wade (1973) & Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - the two previous decisions that people who sought abortions relied on for legality.  

In summary, the Supreme Court found in Dobbs that "the Constitution makes no reference to abortion, & no such right is implicitly protected by any constitutional provision.  The primary holding of the decision - "The Constitution does not confer a right to abortion; Roe & Casey are overruled; & the authority to regulate abortion is returned to the people & their elected representatives."

In response to the Dobbs decision French President Emmanuel Macron pledged to make abortion an irreversible right in France & he lived up to that pledge when on Monday March 3, 2024 the French parliament changed Article 34 of the French Constitution to read "a women has the guaranteed freedom to have recourse to an abortion" - two thirds of the French citizenry had polled in favor of abortion rights which now are legally entrenched in France in the first 14 weeks of pregnancy.  See the difference between how France & America treated this in the analysis of Roe v. Wade & Planned Parenthood of Southeastern Pennsylvania v. Casey that follows hereinafter that shows American courts were more interested in getting what they wanted than doing their job of applying the law under the Constitution.

Naturally, the hostile anti-American media thought of the worst ways they could to describe the Dobbs decision, reporting such things as the Supreme Court "repealed the constitutional right to an abortion" or "eliminated the constitutional right to an abortion," as if there ever was a constitutional right to have an abortion - which we will see below there never has been.

The Founders created a government whose purpose was to secure individual natural rights with the power of the people superior to any power of the new government created under the Constitution.  The national government has limited & enumerated powers & functions under the Constitution & no general authority over state governments other than to require all officers of the several states to be bound by oath to support the Constitution.  The primary holding of the Dobbs decision above is in accordance with these principles.

But let's delve deeper than the text of the Constitution. 

Although both anti-abortion groups & pro-choice groups try to tilt the history of the legality of abortion in early America the records show that from 1600 through the 18th century abortion was practiced in some places & outlawed in others.  In British colonies abortion was legal if performed before quickening while in French colonies abortion was illegal but frequently performed.  Abortion was illegal in Spanish & Portuguese colonies in the Americas.  Although not illegal in most states in colonial America, by 1776 & until the mid-1800s abortion was considered socially unacceptable.  But one by one states started passing anti-abortion laws during the 63 years of the Victorian era (1837 to 1901)  The laws got stronger after 1860 & were more vigorously enforced.  Except for Kentucky, by 1910 abortion was an illegal criminal offense in every state, other than to save the life of the mother.  Abortion was illegal in Kentucky but not considered a criminal offense.

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So we can see that the history of abortion from 1776 to 1973 has been that there was neither a national ban nor a national right to abortion.  The people of each state decided the legality of abortion in their respective states for the first 197 years of our country - meaning the Dobbs decision was in accordance with the country's history.

Additionally, I researched the above history with a special eye as to whether abortion could be considered a privilege or immunity of citizens of the United States as stated in both Article IV of the Constitution & the Fourteenth Amendment to the Constitution that was ratified July 9, 1868 - although I thought that the history makes this virtually impossible for the following reasons: 1) abortion was not enumerated in the text of the Constitution in 1868, 2) abortion was not enumerated in the Civil Rights act of 1866, 3) abortion has not been enumerated in the Constitution after 1868, & 4) abortion is not an unenumerated right that has been deeply rooted in our nation's history & traditions in a supermajority of the states.  In fact the above history shows that abortion was not deeply rooted but was uprooted over time to the point that by 1910 it was illegal in every state in the Union.

So what happened in 1973 was that an unmarried pregnant woman from Texas, pseudonym Jane Roe for Norma McCorvey, wanted an abortion & found feminist lawyers & an activist Supreme Court ready, willing, & able to oblige - after the birth of the child, her third.  Abortion was illegal in Texas, except for those performed to save the life of the mother, during these legal proceedings which started in 1969 .  

In Roe, the 1973 Supreme Court had relied on the 1965 Griswold v. Connecticut decision that struck down a contraceptive ban to married couples based on a made up constitutional right to privacy.  The 1965 Supreme Court had found the right to privacy because "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life & substance."  The 1973 Justices extended the right to privacy to Roe because this right was imagined to be implied by the Due Process Clause of the 14th Amendment to the Constitution. 

Instead of using the type of analysis I provided above using the Privileges Or Immunities clause & the history of abortion like the 2022 Supreme Court did in finding that there is no constitutional right to abortion, the 1973 Supreme Court found that women had the right to end pregnancies through abortions up to viability & that individual state laws banning abortion before viability were unconstitutional which has resulted in over 50 million lives lost.  It is the height of insult & judicial activism to base such a momentous decision by extending a fictitious right to privacy found in the Griswold case that was based on penumbras (partially shaded outer regions of the shadow cast by an opaque object) & emanations (an abstract but perceptible thing that issues or originates from a source) hiding a right to privacy not clearly seen or stated & that never existed under the Constitution.  It is no wonder that Justice Antonin Scalia called the Roe reasoning "garbage."

The Planned Parenthood of Southeastern Pennsylvania v. Casey decision of 1992 reaffirmed abortion rights also based on the Due Process clause but this time using the 1992 Justices definition of "liberty" - namely, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, & of the mystery of human life."  This definition of liberty was another rejection by progressives of the founders belief in an unchanging human nature.  The Casey decision is also as insulting as Roe - both cases go to the heart of fundamental questions of morality, liberty, & government power. 

In deciding the Roe & Casey cases the way the Justices did is tantamount to reading a sentence containing no more than three letter words like "The car is red" & concluding that the car is one of pink polka dots on a black background. 

Both the Roe & Casey decisions rate with Dred Scott v. Sandford (1857) as the worst Supreme Court decisions in our history & deserved to be overturned by Dobbs.  The Dred Scott decision was overturned by the 13th & 14th amendments - the amendment process provides a much more entrenched way of making law than relying on the courts like the plaintiffs in Roe & Casey did.  See above reference to France enshrining abortion rights into the French Constitution.

In summary, the two Supreme Court decisions, Roe & Casey, making abortions legal were clearly using the courts to make abortion law never passed by the elected branches while the 2022 Supreme Court was interpreting law in Dobbs based on the Constitution & the principles I laid out above regarding the history of abortion in the United States.  A tremendous difference.

But let's get back to June, 2022 when the Dobbs decision was announced & progressives saw a great opportunity for electoral gain.  Of particular importance to Republicans who were denied the red wave they expected in November, 2022 is the fact that inflation reached its 40 year annual CPI high point of 9.1% the same month in 2022 that the Dobbs decision was released, meaning that in @ least the 2022 midterms abortion was a more important issue to the voters than inflation.

Republicans had called for the repeal of Roe for over 50 years & many conservative states enacted trigger laws that were prepared for such an overturning, but this euphoria was short lived.

Right out of the box, on August 2, 2022 conservative Kansas overwhelmingly voted to keep abortion a state constitutional right by a 60 to 40 landslide margin.  Conservative commentators said the uproar of the May leak of the Court's draft opinion overturning Roe would fade by November & would not be a significant issue compared to inflation in the midterms.  Well, the abortion issue brought every Democrat, most Independents, & some Republicans out to vote in the 2022 midterms. 

Since the Dobbs decision Kansas, Kentucky, California, Vermont, Michigan, & Ohio have all moved in the pro-abortion direction with ballot initiatives.  In addition, Milwaukee County elected a judge by 11 points who campaigned on striking down the state's anti-abortion law that had been enacted in 1849 (part of the history presented above).

States planning (or hoping) to put abortion directly on the ballot in 2024 to either directly reject further restrictions or fully enshrine abortion into their constitutions include Florida, Arizona, Montana, Kentucky, Arkansas, Colorado, Missouri, Nebraska, Nevada, New York, & Maryland.  I added "hoping" because there are tens or hundreds of thousands of signatures required plus approval of the wording of the ballot measure so some may not make it.

Recognizing the potent electoral power of the abortion issue, coupled with the fact that they have no other issues to campaign on @ all, Democrats obviously plan to keep abortion front & center especially in swing states.

So far in 2024 the Florida Supreme Court approved the law enacted after Dobbs that banned abortion after six weeks but also approved a ballot measure for November, that if successful, would undo the ruling regarding the six weeks law (making that law unconstitutional) & would restore abortion rights like the state had before Roe was overturned.

And in swing state Arizona you can expect an all out effort to get a pro abortion ballot initiative ready for November after the Arizona Supreme Court's decision to ban nearly all abortions when they brought back an 1864 law (again, see above history) that did just that.  A WSJ poll shows good prospects for the initiative with 9 out of 10 Democrats, two thirds of Independents, & one third of Republicans supporting abortion rights in Arizona.  Arizona had a 15 week ban on abortions before the 1864 law was reinstated but what restrictions, if any, for the expected initiative are not yet known.

And there is no presidential leadership from Biden or Trump regarding all this abortion activity.  Issue by issue they both consistently prove they do not deserve to be president.

Biden is a self-proclaimed practicing Catholic who paradoxically called for restoring Roe v. Wade as the law on the land in his State of the Union Address on March 7 - "Like most Americans I believe Roe v. Wade got it right.  And I thank Vice President Harris for being an incredible leader, defending reproductive freedom & so much more.  But my predecessor came to office determined to see Roe v. Wade overturned.  He's the reason it was overturned.  In fact, he brags about it.  Look @ the chaos that has resulted. . . If Americans send me a Congress that supports the right to choose, I promise you, I will restore Roe v. Wade as the law of the land again."  See more on "the law of the land" hereinafter.

Several Catholic bishops have found Biden's position on abortion to be an offense to the Catholic church & that many of his actions, such as making the sign of the cross @ abortion rallies is sacrilegious & a mockery of the Catholic faith.  Bishop Paprocki of Springfield, Illinois specifically has called Biden's advocating for abortion an act of heresy that goes against the sixth commandment (Exodus 20:13): "Thou shalt not kill."

Although Biden attends Mass regularly his political actions show he has no respect for Catholic doctrine.  But like so many things he does & says that are obviously false he may not understand the significance of what he is doing & saying as he repeatedly mumbles various phrases or reads off a teleprompter about Bidenomics or the willful non-enforcement of illegal crossings @  the southwest border or abortion.

Biden is just another temporary politician incapable of following his oath of office but is expert in determining how many votes an issue will bring him.  In this case he went from his specific clear oath to "preserve, protect, & defend the Constitution" to supporting a non-existent right to privacy found in the "penumbras, formed by emanations" in the Bill of Rights that leads to a right to abortion tied by implication to the Due Process clause.  In short, his presidency can make anything up.

After waiting many months to state his position on abortion post Dobbs, Trump released a milquetoast video on the subject on April 8 that only made Democrats happier as it did little more than restate most of the primary holding of the Dobbs decision that Roe is overturned & the authority to regulate abortion is returned to the states - the problem Republicans were facing before the video was released.  Trump also took credit in the video for nominating three justices who helped make the Dobbs decision a reality, which is red meat for Democrat campaign ads.

Much of Trump's position on abortion in the video is similar to Nikki Haley's position - talk about a birdbrain!

Like Biden, Trump said that "the Supreme Court decision is the law of the land, or in this case the law of the states."  No, the "Constitution, & the Laws of the United States which shall be made in Pursuance thereof; & all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land" - Supremacy Clause, Article VI, Clause 2.  Dobbs was the Supreme Court decision that interpreted,  followed, & applied the Supremacy Clause in the above named abortion case.  Wouldn't you hope that these two would know this by now?

For 50 years Republicans have emphasized that overturning Roe will not eliminate abortion in America - it will merely return the issue to the states.  Of course Democrats have a field day pointing out that a woman living in a state where abortion is illegal has the inconvenience & impracticality of traveling hundreds of miles to have her abortion.  It takes only a few seconds to say "returned to the states" but the effort involved with what this means will also be a focus of Democrat campaign ads.

Whenever Trump takes a back seat to someone else's supposed power (like when he said Pelosi was in charge of Capitol security on January 6 as if he had nothing to do with it although he was responsible for security of the entire nation) you know that something is not right with the issue for him personally - in this case blaming the Supreme Court for putting abortion in the hands of the states.  Trump uncharacteristically looked for company in the video by saying that Ronald Reagan had the same exceptions to bans on abortion as Trump does himself.  I never remember Trump talking about President Reagan in this respectful tone before. 

In 2015 Trump said that he had "evolved" on the abortion issue from 1999 when he was pro-choice.  Trump said in 2016 that he would select Supreme Court justices from a list prepared by Leonard Leo, then Executive Vice President of the Federalist Society - which Trump did resulting in Gorsuch, Kavanaugh, & Barrett joining the high court with all of them voting to repeal Roe.  Trump is now very careful about bragging about this.

In 2018 Trump endorsed a 20 week federal abortion ban, which turned to a 15 week federal ban in March, 2024.  In April Trump said he would not support any Federal ban on abortion so we can see his position is all over the map.

In 2023, when Trump went out of his way to disparage Ron DeSantis, he called the Florida law banning abortion after six weeks "a terrible thing & a terrible mistake."  And in Arizona, after the Arizona Supreme Court upheld a law banning abortion throughout pregnancy that had been in effect from 1864 to 1973, Trump said the pre-Roe law & outright ban had gone too far & called on the Arizona legislature to remove it.

Majorie Dannenfelder, president of Susan B. Anthony Pro-Life America, said "We are deeply disappointed in President Trump's (current) position . . . Saying the issue is 'back to the states' cedes the national debate to the Democrats who are working relentlessly to enact legislation mandating abortion throughout all nine months of pregnancy.  If successful, they will wipe out states rights."

But when all of the Trump abortion dust settles it comes down to Trump saying both in the video & last January referring to the abortion issue "I will say this: you have to win elections.  Otherwise, you're going to be back where you were, & you can't let that ever happen again.  You have to win elections."  So Trump will keep changing his position on abortion until he thinks enough people have heard him say what they want to hear - enough people that will get him the votes "to win elections."  

That is no position @ all.