Two years ago, we watched as the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned the Roe v. Wade decision from 1973—almost half a century earlier—that had sought to create a national right to elective abortion. Many cheered the earlier decision as a cornerstone of women’s rights. Many—perhaps not as many, myself certainly not among them—cheered the more recent decision as a foundational right to life. In my view, the court merely reasserted the nature of the government under which we live and have done so since 1789.
First, let me say that I think women should have control of their bodies. I think that, if a woman is not ready to bear a child for whatever reason, she should be able to have the fetus removed. I also think she should make that decision promptly, so that the infant is not aware in whatever fashion of the removal and does not suffer from it—however many weeks or months that takes into the process of development. Certainly, if a developing child can survive outside the womb, then it should be born and preserved. But I would, in an ideal world, want all surviving children to be born into loving and caring situations with parents or guardians who want them. But this is my personal opinion.1
My personal opinion, your personal opinion, anyone’s personal opinion is a matter of choice and action. But it is not necessarily the business of the United States government. These United States are a unique creation, unlike almost any other nation in the world. The U.S. Constitution does not, despite what others may think, create a national government that writes “the law of the land” for all citizens, as it does in countries like France and Germany. The federal government was designed, instead, to be the superstructure under which the individual states, fifty of them as of last counting, worked together for their common good.
The Preamble, seven Articles, and twenty-seven Amendments establish a union that recognizes the rights of the various states over all matters not specifically mentioned in the founding document. That original document and its amendments do not replace or supersede the constitutions or charters or whatever other means the states use to govern themselves. The Constitution was intended to create limited national functions that individual states could not undertake for themselves, like providing for common defense against foreign enemies, preserving the borders, establishing tariffs, and maintaining relations with foreign governments. The first ten Amendments immediately forbade certain actions that the government as a whole—both on a national and on a state level—could take but should not: infringe on a person’s speech and religion, deny a right of self-defense, impose unfair trial conditions, and so on. The ninth and tenth Amendments then guarantee that the people themselves might have other rights not therein granted, and that the states have powers not therein listed nor prohibited. Overall, the Constitution is a pretty constrained proposition.
Look high and low in the Constitution, and you don’t find mention of many of the laws that most people take for granted. It doesn’t prohibit you from murdering someone, except in certain circumstances described below. So, the Constitution does not guarantee a universal right to life. It also doesn’t have a rule or regulation about personal assault, or creating a public nuisance, or public drunkenness. It doesn’t establish tort law, or contract law, or regulate acts between consenting adults. It doesn’t even regulate actions regarding children, let alone infants and the unborn, except in instances below. It leaves whole areas of the law to the preference and establishment of the states and their local populations, including the issue of abortion.
So, if you murder your neighbor over a property or noise dispute, you can be tried in state courts under state laws. You will not be tried in federal courts because there is no applicable law.
There is federal law, derived from the 14th Amendment, which establishes that all persons born or naturalized in the United States are citizens of both the U.S. and the state where they live. The first section of this amendment forbids a state from “mak[ing] or enforce[ing] any law which shall abridge the privileges or immunities of citizens of the United States.” So, the states cannot officially sanction a certain religion or outlaw the keeping and bearing of arms.
That section of the 14th Amendment also keeps any state from “depriv[ing] any person of life, liberty, or property, without due process of law,” not can the state “deny to any person within its jurisdiction the equal protection of the laws.” This is the basis of a person’s “civil rights.” Under this Amendment, someone can be federally cited for denying another person’s civil rights if his or her actions infringed on the person based on their race, religion, or some other protected characterization—but not just because you killed them.
However, there are, as noted above, special cases created by subsequent federal statutes that have not yet been challenged in court. You can, for example, be tried in federal courts if you kill an elected or appointed federal official, a federal judge or law enforcement officer, or a member of the officer’s immediate family. You can be tried if the murder was involved with drugs; with rape, child molestation, or sexual exploitation of children; was committed during a bank robbery; or was an attempt to influence a federal trial. You can also be tried for a murder for hire, or for murder committed aboard a ship—which, I guess, would be outside territorial waters or outside a state’s jurisdiction, such as not in harbor or a river—or committed using the U.S. mails, such as to send a bomb or poison to your victim. These are all specific federal laws about murder.
But walk up to someone on the street and hit them on the back of the head—that’s a state crime, not federal. And similarly, aborting a child might be a state crime—if so voted on by its citizens—but it does not become a federal crime, not under the Dobbs decision.
1. See also Roe v. Nothing from September 2022.