An Analysis of the Legality of Abortion

An Analysis of the Legality of Abortion

In Abortion and Social Justice, Dennis Horan, J.D. et alii argue "The Legal Case For the Unborn Child":

Abortion is not a private matter. The destruction of human life, even 'incipient' or developing human life in the womb, can never be considered a private matter under our law. The contention that it is a private matter would be too ludicrous and absurd to even argue were it not so often put forth under such intellectually impeccable auspices. Would those civil libertarians who argue that abortion is a private matter, argue that the exercise of civil rights is purely a private matter between the Black man and the man that thwarts them? Certainly not. Just as the civil right to vote must be protected by law, so too the most fundamental and basic of all civil rights - the Right to Life - must be protected by law.(105)

In her book, Abortion and Dialogue: Pro-Choice, Pro-Life, and American Law, Ruth Colker explains why Roe v. Wade is considered an "activist" decision:

Second, it [Roe v. Wade]set the tone for how activist the Court would be in our lives. Rather than simply rule for the plaintiff in Roe v. Wade, thereby invalidating the challenged Texas abortion statute, the Court outlined the parameters of a constitutional abortion statute. In other words, the Court drafted a model statute rather than simply striking down the Texas statute. Such judicial involvement in legislative activity is considered to be highly activist because the Court, in a sense, is displacing the legislature's role in society. Such activisim is often criticized for interfering with legislative dialogue, because the judiciary, an undemocratic institution, has substituted its judgment for that of the legislature. (102)

Former president Ronald Reagan in his book, Abortion and the Conscience of the Nation, states how the Roe v. Wade decision is a violation of the Constitution:

Make no mistake, aboriton-on-demand is not a right granted by the Constitution. No serious scholar, including one disposed to agree with the Court's result, has argued that the framers of the Constitution intended to create such a right. Shortly after the Roe v. Wade decision, Professor John Hart Ely, now Dean of Stanford Law School, wrote that the opinion "is not constitutional law and gives almost no sense of an obligation to try to be." Nowhere do the plain words of the Constitution even hint at a "right" so sweeping as to permit abortion up to the time the child is ready to be born.