United States Supreme Court Building. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel.
United States Supreme Court Building. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

Column: Samuel A. Alito Jr. Tells “We the People”: “No Support in American Law For A Constitutional Right To Obtain An Abortion.”

Not quite, Mr. Justice. True, our pre-amendment Constitution specifies no civil rights save a brief clause barring a “religious test” to hold public office. However, the Constitution’s Preamble amounts to a launching pad for debate over civil rights and other needs of American citizens.

Alito must have been absent the day his law professor reviewed the Preamble, which the dictionary defines as “the introductory part of a constitution or statute that usually states the reasons for and intent of the law.”

When Alito wrote the majority opinion for the Supreme Court on June 24, he proclaimed that the Constitution grants no right for a woman to obtain an abortion, thus demolishing the 49-year-old Roe v. Wade ruling which allows all American women to obtain an abortion.

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion,” Alito writes. “No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right.”

“I will never stop fighting to protect the right to an abortion, the right to contraception and all reproductive rights,” Rep. Sarah Jacobs of San Diego says in a news release.

Jacobs, who reflects the concerns of the majority of Jews, announced in the release that she is co-sponsoring the Right to Contraception Act to ensure access to birth control after Justice Clarence Thomas warned in a concurring opinion that birth control and same-sex marriage could be targeted in future cases. Both the birth-control bill and a bill to codify same-sex marriage have been passed by the House in the past few weeks, and their fate in the Senate is uncertain.

“These extremists are working to take away the rights of women, to take away our right to decide when to have children, to take away our right to control our own lives and our own bodies, and we will not let this happen,” adds Rep. Kathy Manning of Greensboro, N.C., also a Jewish lawmaker.

We must all concede that Alito is right when he insists that the Constitution does not grant the right to an abortion. Likewise, Alito must concede that the Constitution does not grant the right to use the internet, fly in an airplane or air-condition one’s apartment in Florida.

The Preamble to the Constitution affords Jacobs and Manning an opening to argue for abortion rights, though their positions are open to interpretation. Take your pick from provisions in the Preamble, which reads:

“We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence,, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Most obvious is the passage to “secure the blessings of liberty,” words which match Jacobs’ feelings: “As a young woman, reproductive health care is my health care. Like all reproductive rights, the right to contraception is vital to our wellbeing and our freedom.”

Freedom is what this country is all about. America would not be America without it. The thirst for freedom inspired the Declaration of Independence.

The question here is whether choice of an abortion is part of freedom or amounts to a crime, like murder.

To “secure the blessings of liberty” does not guarantee that all we do is permissible, but it allows for debate on abortion and a range of issues. Alito does not even bother to recognize the distinction when he writes, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

Alito’s thinking, if we can call it that, is that the Constitution must provide such a right.

“Promote the general welfare” links directly with the question of abortion. Proponents of choice would argue that reproductive freedom coincides with the range of bread-and-butter issues such as child care, affordable housing and universal health-care. Opponents of abortion would contend that it constitutes murder.

“Establish justice” will permit women the right to choose an abortion assuming that nobody will be harmed. Opponents will assume there will be harm.

To play semantic gymnastics, maybe “establish justice” means to establish each justice of the Supreme Court. The text of the Constitution calls them not justices but judges, and the lower courts are referred to as “inferior courts,” whatever the founders meant by “inferior” during their time. Considering the wiser rulings of the lower courts, the present-day Supreme Court can now claim the mantle of “inferior court.”

About Bruce Ticker

Bruce S. Ticker, who writes from Philadelphia, also blogs for The San Diego Jewish World and Smirking Chimp and previously for the suspended Philadelphia Jewish Voice. He was previously a reporter and copy editor for daily newspapers in eastern Pennsylvania.

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