The U.S. Supreme Court wrote “the Constitution of the United States confers the right to choose to have an abortion” in their 1973 opinion Roe v. Wade, effectively declaring abortion the law of the land. Fifty years on, the U.S. Supreme Court revoked that law when they wrote “the Constitution of the United States doesn’t confer the right to abortion” in their 2022 opinion Dobbs v. Jackson Women’s Health Origination.

Weeks later, U.S. President Joe Biden signed Executive Order 14076 on July 8, 2022; instructing the Department of Health and Human Services to expand access to contraceptives; instructing the Federal Trade Commission to protect patient’s reproductive health privacy; and instructing the Department of Justice to organize an army of pro bono lawyers to defend women charged with interstate travel from the 16 and soon to be 22 states where abortion is now banned and considered a felony crime.

He’s also tweaking the “Emergency Medical Treatment and Labor Act,” a 1986 Act of Congress and federal law — which requires all ER departments who accept subsidies from Medicare to provide medical screenings — to also include reproductive health care services, too.

“The Biden Administration seeks to transform every emergency room in the country into a walk-in abortion clinic,” Texas Attorney General Ken Paxton said Thursday, announcing the Lone Star State's lawsuit against the Biden Administration.

Moreover, the Department of Health and Human Services on Friday accepted its first ever application for over-the-counter birth control pills in the wake of Roe’s fall. Coincidence?

The fait accompli is this. We'll soon be picking up contraceptives off super market shelves, but not as a federal constitutional republic. They’re a subsidy, from a self-proclaimed centrist, whose driven the largest expansion of federal government in decades.

Due Process

A Due Process Clause, found in both the Fifth and Fourteenth Amendments to the United States Constitution, prohibits arbitrary deprivation of "life and liberty" by the government, except as authorized by law.

Substantive due process empowers courts to protect those constitutional rights from government interference and was precisely the argument used in Roe who argued that a woman’s right to privacy (ensconced in the 14th amendment) was being deprived by the government. While their landmark decision in 1973 declared a woman's right to terminate her own pregnancy constitutional — it was vague, yielding to a 1992 landmark decision Planned Parenthood v. Casey which set a time limit for abortion at fetal viability, 23-24 weeks. But when a Mississippi law banning abortion at 15 weeks came into conflict with Casey at 23-24 weeks in 2018, the discussion yet again reached the U.S. Supreme Court. This time around the majority held that abortion was not a constitutional right, effectively reversing both Roe and Casey and wrote “abortion is not a constitutional right, as it is not deeply rooted in the country’s history, only individual states have the authority to regulate access to abortion services.”

Federalist Papers

They were a collection of 85 newspaper articles and essays written by Alexander Hamilton, James Madison, and John Jay to promote the ratification of the Constitution of the United States. In Federalist No. 1 they explain why:

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.

Originally comprising only seven articles, Article VII in particular established the mechanic by which states ratify the constitution. It is regarded as the oldest written and codified national constitution in force today, a resounding experiment with democracy.

Activism

While Dobbs effectively overturned Roe and Casey, all three were characterized as "activist courts" legislating from the bench. In truth, the law reflects but in no sense determines the moral worth of a society. While each examined if or whether abortion was rightly conferred by the U.S. Constitution, they did so from unique points in American history.

The majority decision, written by Justice Samuel Alito, observes, "The Constitution makes no reference to abortion, and no such right was implicitly protected by any constitutional provision." However, many enumerative rights are implicit within the U.S, Constitution, and Washington v. Glucksberg provided a litmus test.

Glucksberg held that enumerative rights (rights not specifically mentioned in the Constitution), use history as a yardstick for determining which rights are deeply rooted in the nation's traditions and notions of liberty.

Prior to Roe, there were several Pro-Choice landmark decisions in place. Griswold legalized contraceptives for married couples (1965), and Eisenstadt for unmarried couples (1972). California > Oregon > North Carolina led a consortium of 13 states that were decriminalizing abortion in cases of rape, and in 1970 Hawaii became the first state to legalize abortion.

But for a nation steeped in religious and puritanical mores, those conversations were relatively new. The court rightly observed that while the principles of "life and liberty" are enshrouded in the constitution as a compass, laws regarding the right to life, and a woman’s right to choose, inviolably belongs to the people, not the federal government, sending those conversations back to states for discussion, review, debate and legislation.

The U.S. 50 states presently span the spectrum on abortion from all together banned > 6 weeks > 15 weeks > 22 weeks > 24 weeks > Viability > Third trimester > No restrictions. As in 1973, the states are a patchwork of social issues, politics, and faith stitched together as a Federal Constitutional Republic. Should they wish to come together as a nation they'll need to invoke Article VII.

New Federalism

When we do for others, what they can and should be doing for themselves, we contribute to their weakness — Abraham Lincoln.

Since the founding of the country, and particularly with the end of the American Civil War, power has been shifting away from the states and toward the national government.

During the American Civil War and Great Depression, in particular, states began borrowing and relying too heavily upon the federal government for subsidies. New Federalism, a notion ignited by Richard Nixon, was designed to restore the states autonomy and power which they lost to the federal government as a consequence of FDR’s New Deal. Block grants, in particular, enables them to rebuild their economies without the federal government’s oversight, interference, and regulatory power.

Prior to Dobbs, every state had at least one abortion clinic, and each and all were subsidized by the federal government. But should an unborn child’s right to life, or a woman’s right to choose, be a mere grant, subsidy, gift, decision or executive order from an ever-changing federal government? Or is it time for life and liberty, an oft used catchphrase in the preamble, to be codified into the U.S. Constitution?

The Constitution has been tweaked 27 times since it was put into operation in 1789; free speech (1), the right to bear Arms (2), emancipation of the slaves (13), equal protection (14), and women’s right to vote (19) all resound from the U.S. Constitution. A joint resolution, a presidential signature, and ratification of the states was the founding fathers’ way to reversing unpopular Supreme Court decisions. More truthfully, only a small thoughtful group of committed citizens ever changed the world.

The 28th Amendment, as yet, is unwritten.