I am a strong supporter of a woman’s right to choose and, like many others, am keenly upset with the recent ruling of the Supreme Court to reverse Roe vs Wade.
I did not like it at all!!
But were they wrong? According to the Constitution, I don’t think so.
The Tenth Amendment to the Constitution of the United States clearly states:
“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.”
In the original draft of the Constitution, specific reference to guaranteed rights were not articulated. Madison, Hamilton and Jay, in their 85 Federalist Papers, made strong arguments for ratification. But in order to persuade the citizens of the state of New York (and Virginia) to ratify the document, and honor the arguments of the Anti-Federalists (who were arguing for individual rights), an agreement was made to make the first order of business of the new government to adopt ten amendments to the Constitution (the Bill of Rights). These guaranteed specific individual rights but did not include such issues as abortion, gay rights, segregation, etc.
If my understanding of the Constitution is correct, the solid way to guarantee these rights is by Constitutional amendment. Laws may be enacted and legal precedents set (like Roe vs Wade, etc.), but they may be challenged (as they were and are). Senator John Cornyn even suggested that decisions such as Plessy vs Ferguson (state-sponsored segregation) and Brown vs Board of Education (separate but equal) be revisited. Justice Thomas suggested further that other rights such as gay marriage, etc. be revisited.
Now these are paths to the past.
Amending the Constitution is difficult – and therein lies the problem and challenge; but the tenth amendment also says that powers can be reserved to the people.