New York's Abortion Law Ironically Shows Roe v. Wade Is Unnecessary And Obsolete

Smiles and cheers for more abortions in New York

The last thing social media needs is another opinion on New York’s new abortion law.

However, since I don’t hear the full picture being presented, I am going to give my brief thoughts.

The Founding Fathers created a brilliant government model. At the federal level, they created three co-equal branches—legislative, executive and judicial—each given specific powers the others did not have, each to serve as a check and balance of others. They drafted and the states ratified the Constitution which included clear limitations on the power of each branch, limitations on the federal government as a whole, and recognized certain God-given fundamental rights. Other powers not mentioned were specifically reserved for the people, the individual states and their local governments. They also included provisions for how to amend the Constitution in the event changes were needed or specific additional rights needed to be recognized.

When one co-equal branch oversteps its authority, the balance of power fails. Unfortunately, this has happened many times over the past 240+ years with each branch taking constitutionally granted authority from each other in some areas, ceding constitutionally granted authority in others.

When the federal government usurps authority of the people, states or local governments in areas the Founders reserved for them, the balance of power fails. This too, unfortunately, has happened quite often in the past two centuries. The Founders fully intended the individual states to be laboratories of democracy, the places where issues not constitutionally reserved to the federal government would be examined, tested, regulated, etc. to see what works best at the local level. When the federal government steps in where it shouldn’t, the states are robbed of their ability to function this way. Government is best, they believed, at the level closest to the governed.

Similarly, when the federal Judicial Branch takes an expansive, activist view of the law and chooses through judicial orders and decisions to elevate to constitutional magnitude “rights,” rather than requiring amendment to the Constitution through the process the Founders established, the balance of power fails. Again, this happens regularly. Roe v. Wade is perhaps the best known and most controversial example of federal judicial overreach. Roe elevated rights not recognized in the Constitution—essentially amending the document—to a constitutional level while ignoring the actual amendment process that involves all three co-equal branches and the states.

What New York and Iowa showed us this week is that the imbalance created when the federal judiciary usurps power is obviated and totally and unnecessary. As is any ongoing need for unnecessary, obsolete and poorly reasoned decisions like Roe v. Wade.

New York enacted a broad expansion of its abortion law out of fear the Trump Administration or the Supreme Court will take steps to curtail or overturn Roe. The law includes protection of the right for a woman to terminate her pregnancy up to the moment of birth if aborting would protect or preserve her “health.” Does the health have to be physical? What about mental health? Spiritual? Financial? Educational? The law fails to address this, which basically means abortion is legal for just about any reason up until the millisecond the baby fully escapes the birth canal.

Many have criticized this new law while others have marched to its defense. I found Matt Walsh’s commentary particularly interesting—troubling though obviously tongue-in-cheek.

Perhaps the most disturbing reaction has been the cheering of New York legislators at the bill’s passing and Governor Cuomo ordering state landmarks lit up in pink to celebrate.

I have read the New York statute and think the intended outcome is horrifying. Yet, New York did what the Founding Fathers envisioned New York doing—legislating in an area reserved for the people, states and local governments. As a result, I do not criticize them for changing this law because the process they undertook was (at least theoretically) the appropriate way for an abortion law to be modified and enacted. I find the likely impact of the law morally repugnant—arguably evil—as it will lead to many more innocent deaths. So, my response to this law will be to try not to travel to New York, spend my money there, etc. and I will argue against the law as I feel led.

Meanwhile, last year, Iowa passed and enacted an abortion law that provides protection for life of the fetal child once a heartbeat is detected and restricts abortion afterward. Iowa’s law never went into effect because it faced immediate legal challenges. The Iowa attorney general refused to defend the law—something his office is obligated to do—and the law has been struggling for survival ever since.

As New York was passing its expansive abortion law last week to the glee of its state legislators, leftists, pro-choice supporters and pink vagina hat wearers everywhere, Iowa’s law was overturned by an Iowa trial court. The case against the law will now head to the Iowa Supreme Court.

Starting on page 5 of the Iowa court’s decision (you can read it here), after a brief discussion of Roe and US Supreme Court cases decided in its wake, the judge found the Iowa law violates the Iowa Constitution. I have not read the Iowa Constitution but understand from this case it includes a provision that affords protection for women who seek abortion. This provision presumably came about through the collective will of the people of Iowa and their elected legislators.

Now, whether the Iowa judge who ruled against this law is right or wrong is not the issue. Rather Iowa, like New York, is going through the process a state should have authority to do—determine what restrictions on abortion should exist within its borders. If Iowa determines its new law violates Iowa’s constitution, then that’s Iowa’s business. Just as New York is entitled to enact a more expansive law under its own constitution if it chooses.

This is the way it was supposed to work—the laboratories of democracy. State legislatures, elected by the state’s people, making decisions appropriate for each respective state. Far different from non-elected federal judges in black robes dictating by judicial fiat what the states must do regarding an area in which the federal government had no clear constitutional authority to operate.

Pro-choicers may make the argument that none of these laws or state constitutional provisions protecting abortion would exist without Roe. But this is disingenuous because Roe blatantly usurped state power just as Roe supporters in the 1970s wanted. They couldn’t get the states to liberalize their abortion laws, so they sued and got nine unelected judges to do unilaterally it for them. Nationwide. Leftists often pursue in the courts what they cannot successfully accomplish through legislatures. Why let those inefficient state legislators who represent backward districts full of regressive hayseeds get in the way of “progress”?

The truth is the states have always had the authority to legislate and govern in the areas of health care and abortion because neither is mentioned as a fundamental right in the US Constitution. Therefore, abortion is not an issue over which the federal government is authorized to act. Roe impermissibly “constitutionalized” abortion, forcing states into a small, poorly defined and continuously changing box of science and technology within which they could attempt regulation. And, predictably, the lawsuits fly the instant every new abortion law is enacted.

Good luck with that.

New York’s law weighs a woman’s right to choose as much stronger than the life of the child or society’s interest in protecting it. Support it or denounce it as you choose but the democratic process worked. Iowa’s law values the life of the child and society’s interest higher than the woman’s right to choose. Support it or denounce it as you choose but the democratic process worked.

Regardless of your view of each state’s new laws, each is attempting to do what it is and should be constitutionally authorized and empowered to do exclusively and without federal government interference. Roe judicially but unconstitutionally imposes requirements on all states in an area the federal government does not have power to regulate without constitutional amendment. And Roe leaves what little authority the states maintain subject to attack by aggressive litigators, the outcomes left to the whims of federal judges. What both New York and Iowa have shown is the states can regulate themselves. The can exercise their constitutional authority without federal interference. Roe v. Wade is not just an unconstitutional overreach. It is unnecessary and obsolete.

When Roe is finally overturned, the states will repossess the full authority originally given them. At least on this one issue.

And the balance of powers. will be corrected. At least on this one issue.