The Dangerous Fiction of a Constitutional “Right to Privacy”
For nearly fifty years, the evil and shameful legacy of Roe v. Wade has touched just about every corner of American society. It is one of the most consequential and devastating court decisions that the world has ever seen. This June marks the fourth anniversary of the Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade, and ended nearly fifty years of federally-imposed abortion doctrine.[1]
While many Americans celebrated Dobbs as a victory for life, the decision also represented something deeper. It represented a rejection of the mistaken notion that the Constitution contains a free-floating “right to privacy.” For decades, courts and pro-abortion advocates relied heavily on this narrative to justify the killing of innocent children. Yet one fundamental problem remained: it never existed in the Constitution to begin with.
Think about that: millions of American children lost their lives based on a lie that activists read into the Constitution.
Nevertheless, in Roe v. Wade, the Supreme Court claimed that abortion fell within this broad constitutional fiction, supposedly implied by “penumbras” and liberty protections, and this ultimately cost millions of preborn children their lives.[2]
What’s Wrong with Privacy?
The idea of privacy itself is not inherently wrong. Americans rightly value personal liberty and freedom from unnecessary government involvement. But the Court’s decision stretched the concept of privacy far beyond what the Founding Fathers intended. To understand why many constitutional conservatives believe that this was a serious misapplication of the law, it is important to revisit the original purpose of the 14th Amendment.
The 14th Amendment was designed to protect all human beings from being denied basic rights and equal protection, particularly newly freed slaves. The amendment declares that no state shall “deprive any person of life, liberty, or property, without due process of law” (emphasis added), nor deny any person “the equal protection of laws.” Its purpose was to expand protection for vulnerable human beings – particularly former slaves – not remove protection.[3]
Substantive Due Process
Of course, the debate surrounding abortion has always been narrowed down to one fundamental question: Does a preborn child deserve legal protection as a human being?
The real issue, therefore, is not whether or not the baby in the womb is a human being, but rather how some human beings can be excluded from this 14th Amendment protection simply because they are dependent, unseen, and unwanted.
Justice Clarence Thomas addressed these concerns directly during Dobbs. He challenged this constitutional fiction, specifically in regards to the reliance on “substantive due process,” a legal concept that infers certain rights into the Constitution which are not explicitly stated.[4] Thomas wrote, “Substantive due process is an oxymoron that lacks any basis in the Constitution.” He also wrote that “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”[5]
Justice Thomas not only exposed the fallacy of the right to privacy in relation to abortion, but he reminded us that the battle we are facing is of complete moral injustice in numerous aspects. In his view, the Court has a moral duty to correct these constitutional distortions and return interpretation to its original meaning. The title of “Justice” seems strikingly suitable and appropriate for his willingness to challenge these disingenuous principles of opposition.
Moral Corrections through the Constitution
It is also worth noting that America has a history of correcting injustices through constitutional avenues, with the original interpretation of the 14th Amendment being a prime example.
The Constitution’s 10th Amendment states that “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.”[6] Thus, rights inherently belonged to the states or to the people, and only some limited matters of grave importance were reserved to the federal government.
Following the Civil War, in 1866, Congress proposed to the states the 14th Amendment “to guarantee equal civil and legal rights to Black citizens” since this was an issue deemed morally important enough that the federal government needed to guarantee the protections on a national scale rather than leaving it to the states. This amendment was ratified on July 9, 1868.[7]
Justice Thomas is right that Dobbs does not go far enough. Dobbs solely returned the question of the legality of abortion to the states, thus allowing each child’s right to life to be determined by his or her zip code. While a national personhood amendment would be an appropriate correction to America’s grave sin of abortion that continues today, even four years post-Dobbs, Georgia Right to Life will continue to fight on a state level for a personhood amendment to be added to Georgia’s state constitution so that all Georgian babies at least may be afforded the protections that the Constitution’s 14th Amendment proclaims: to protect all persons from being deprived of “of life, liberty, or property, without due process of law.”[8]
Reflection
As Americans reflect on the anniversary of Dobbs, we should remember that constitutional rights must be grounded in truth, not in delusional judicial imagination. A society committed to equal justice and protection cannot selectively determine which humans are more valuable than others. We are all made in the image of God. If the promise of the 14th Amendment means anything, it must include the defense of all innocent human life, no matter the stage of development. This is the truth that will forever remain. No court decision, deceptive coercing, opposition, or cultural shift will ever alter it.
Sources:
[1] Dobbs v. Jackson Women’s Health Organization | Constitution Center
[2] Supreme Court
[3] 14th Amendment
[4] Substantive Due Process, Defined
[5] Justice Thomas (Griswold v. Connecticut, Lawrence v. Texas ,Obergefell v. Hodges)
[6] 10th Amendment
[7] 14th Amendment
[8] Ibid.
Anna Ireland
Georgia Right to Life
Intern
Georgia Right to Life Committee (GRTL) is a faith-based, non-profit, non-partisan, non-sectarian organization whose fundamental purpose is to engage in actions that will restore respect and effective legal protection for all human beings from the moment of fertilization until natural death.