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Fox News Senior Judicial Analyst Judge Andrew P. Napolitano

From the Freedom Files

The Coming Abortion Wars

Amid arguments in the Senate over whether the impeachment of former President Donald Trump is constitutional, and in the House over whether $1.9 trillion is enough money to borrow and distribute to select taxpayers and institutions, there have been rumblings among Democrats to make it more difficult for the Supreme Court to invalidate or permit states to gnaw away at Roe v. Wade.

Roe v. Wade is the 1973 Supreme Court opinion that essentially establishes — within the privacy of the patient-physician relationship — the right to choose to abort a baby in the womb. The opinion holds that during the first trimester of pregnancy, the states have no interest in regulating abortion beyond the health of the mother. During the second trimester, the states can regulate the procedures used, but they may not ban or interfere with abortions. During the third trimester, the states may ban or permit abortions.

Roe's medical cornerstone is viability — the ability of the baby to live outside the womb. In 1973, viability, generally, was at the beginning of the third trimester. Today, viability is closer to conception. Hence, state regulations protecting post-viable pre-third trimester babies.

Roe's legal cornerstone is the absence of personhood. The opinion offers that because philosophers, theologians, scientists and physicians cannot agree on when personhood attaches, then neither will the justices of the Supreme Court. Thus, Roe declares that the baby in the womb is not a person. Yet, legally, if the baby in the womb is a person, then a host of constitutional protections insulate the baby from being killed by her mother and her physician.

The Fifth Amendment prevents the federal government — which gives millions a year to Planned Parenthood — from impairing life, liberty and property of people without due process. The 14th Amendment prohibits the states from impairing life, liberty and property without due process, compels them to treat persons within their borders similarly — what is an unlawful killing for me is an unlawful killing for thee — and compels the states to guarantee privileges and immunities; foremost among which is the right to live.

I offer this brief constitutional explanation of Roe as a background to discuss what is coming our way.

Coming our way is a massive effort by pro-abortion forces at the state and federal levels to shore up Roe — to insulate it from interference by the Supreme Court — and thereby make abortions more available and, in some states, performed at taxpayer expense. President Joseph R. Biden has stated that he wants Congress to enact a statute that will put into positive law the right of every woman to kill her unborn child at any time, irrespective of what various states have enacted to preserve the lives of unborn children.

Is the baby in the womb a person? Biden does not want to answer that question. I don't know how conversant he is in philosophy or constitutional law, or common sense, but he won't go near this.

Last week, the Senate defeated a measure that would have protected the lives of babies who survive abortions. Some abortions involve the slaughter of the baby in the womb and the methodical removal of her remains. Some involve the chemically induced expulsion of the baby from the womb, which usually kills the baby, but not always. The Senate vote was not only humanly repulsive — it permitted the states to permit the mother and the abortionist to let the surviving baby die — it violated the obligation of the government to uphold the Constitution.

Is the baby in the womb a person? Many states are wanting here as well, as they will not answer this question. They know the constitutional obligations imposed upon them by the 14th Amendment. Yet — like their federal counterparts — they are on the cusp of advancing the killing of more unborn children.

In New Jersey, for example, where abortion is lawful up to the moment of birth — not because of legislation but by a rule established by the Board of Medical Examiners and upheld by the courts, and where it is taxpayer-funded, also mandated by the courts — proposals are making their way through the legislature to codify into law the right to take the life of an unborn child at any time at state expense, along with a prohibition on autopsies for the aborted baby — so it will be unknown if the mother and her physician starved the baby to death.

Is the baby in the womb a person? Here we are in 2021 talking about killing babies by scalpels, chemicals and starvation. We are, and we will be for some time. Even if the Supreme Court invalidates Roe v. Wade and the states are free to go their own way — New Jersey, all killing all the time; Pennsylvania, no killing at any time — we still have a Constitution that imposes profound restraints upon the power of the states to permit killings, and which gives Congress the power to enforce state compliance.

Is the baby in the womb a person? Of course, she is. The baby has human parents, and her body contains all the genomic materials to grow into human childhood and adulthood. The denial of personhood to babies in the womb is akin to the judicial denial of personhood to Blacks before the Civil War. In the very essence of the Declaration of Independence, Thomas Jefferson wrote that our right to life is inalienable.

The right to live is the highest right there is. Any society that can impair the right to live by declaring any groups to be nonpersons has rejected the self-evident concepts of right and wrong and cannot long endure.

Negating personhood is the most dangerous thing the government can do. It is a one-way slippery slope. Whose personhood will the government negate next?

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Copyright © 2016 Judge Andrew P. Napolitano. All rights reserved.