Codifying Roe v. Wade will prove to be abortive

There is action afoot in some circles to codify Roe v. Wade as a result of the Dobbs decision overruling Roe and the succeeding case, Planned Parenthood v. Casey. Those efforts will prove to be abortive, pun intended.

The Supreme Court has already ruled that abortion is not a right secured by the Constitution. However there are those who insist that Congress can enact laws that will supersede the Supreme Court's decision in Dobbs and any laws enacted by individual states. In Dobbs v. Jackson Women's Health Organization, the Supreme Court held, majority opinion by Justice Alito, the following: "...abortion presents a profound moral issue on which Americans hold sharply conflicting views. But the Constitution does not refer to abortion at all...and although the Supreme Court has recognized some constitutional rights as protected by the due process clause, even if they are not mentioned in the constitution, the right to an abortion is not one of them. ... such rights must be deeply rooted in our nation's history. But until the second half of the 20th century, there was no support in U.S. law for the right to an abortion. Indeed, most states regarded abortion as a crime."

Alito continued: "Roe, was egregiously wrong and deeply damaging and - along with Casey - should not be allowed to stand....the issue of abortion should return to the people's representatives."

As wordsmith's, we attorneys should rejoice that we now have a Supreme Court that actually honors the written word, rather than rewriting documents such as the Constitution, to suit the collective agenda of the Supreme Court itself.

There are those who say that the Democrat Congress and the Democrat president must act immediately before they lose control of Congress this coming Nov. 8th. By what authority would Congress be authorized to act? The answer seems to be to drag out that old, tired and hackneyed clause of Article 1, Section 8, Clause 3 of the Constitution: the Commerce Clause.

It's been proposed to use said Commerce Clause as it's been used to create a statutory right to abortion in the United States. The law would protect anyone who performs or receives an abortion prior to viability from being criminally prosecuted or being held civilly liable. Further, it would override and preempt any state law outlawing abortions.

Congress has used its power under the Commerce Clause to do many things not authorized by the Constitution. This proposed use is similarly not authorized by the Constitution. James Madison, Father of our Constitution, said that the purpose of the Commerce Clause "grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the general government." In other words, the commerce clause was not intended to be a positive grant of power to the Congress, but was intended to grant power to Congress to resolve disputes between the states. There is no current dispute to be resolved. Hence, Congress has no proper role at this time.

There are numerous examples of the misuse of the Commerce Clause, the most egregious of which is Wickard v. Filburn (1942) wherein the court held that "even where farm production was intended wholly for consumption on the farm, it is subject to federal regulation since the consumption might reduce the demand for other commodities which might have an impact of interstate commerce."

In conclusion, the Dobbs decision returns the issue of abortion to the people and their respective state representatives, where it was pre-1973, rather than nine unelected lawyers in robes deciding the issue for them.

Also, it is the function of the Supreme Court and all judicial officers to determine what the legislature intended by the written words before them. It is not the function of the judicial officer to do what is popular or to do what the people want, assuming the Supreme Court has a means by which it could determine what the people want. Determining what the people want is left for the two political branches of the government: Congress and the president. If they fail to do as the people wish, they will lose their office. The judicial officer takes an oath to follow the law and the Constitution. There is no oath to rewrite the law, including the constitution, as they wish it were.