by Zachary Garris, president of the Federalist Society at Wayne State University Law School
Oklahoma State Senator Joseph Silk has introduced a bill that would criminalize abortion. Known as the “Abolition of Abortion in Oklahoma Act,” Senate Bill 13 would define abortion as homicide and make it punishable by up to life in prison.
Of course, the media and legal “scholars” all condemn this bill as “unconstitutional.” In her coverage of the story at Tulsa World, Barbara Hoberock asserts that “Federal law supersedes state law” and cites Roe v. Wade (1973) in support of her claim.
This is the usual response by those who have bowed the knee to the U.S. Supreme Court and its claim of ultimate authority over all other branches of government, including the states.
So does Roe v. Wade supersede state law? This would require that Roe is actually consistent with the Constitution, which it surely is not. Even pro-abortion legal scholars are aware that Roe lacks any legal merit. Shortly after Roe was decided, progressive legal scholar John Ely condemned the decision—“because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
The Constitution granted limited powers to the federal government, namely commerce and defense (Article I, Section 8). Outside of a few restrictions on the states in Article I, Section 10, everything else is a state issue. As the Tenth Amendment says, “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.”
Roe v. Wade turned the Tenth Amendment on its head, as the Supreme Court struck down state laws banning abortion on the basis that they that violated the Due Process Clause of the Fourteenth Amendment. The Supreme Court invented this idea of “substantive” due process, which is code word for the Court doing whatever it sees fit.
The Due Process clause was intended to refer to “procedural” due process, meaning proper judicial (not legislative) procedure must be followed before infringing upon a citizen’s rights. Yet the Court in Roe ruled that the Fourteenth Amendment guaranteed a woman’s “right” to privacy and that states could not regulate abortion until after the first trimester of pregnancy.
The plain fact is that the Constitution provides no “right” to abortion, and no Supreme Court assertion changes this. Apart from a constitutional amendment, abortion is a state issue to be ajudicated by state legislatures.
So Oklahoma is correct to assert its sovereignty as a state and defy Roe v. Wade. Congressional laws and Supreme Court rulings are only “supreme” insofar as they are “in pursuance” of the Constitution (as the often-cited Supremacy Clause states).
If a Supreme Court ruling is in contradiction to the Constitution, then states are obligated to ignore and obstruct the ruling (practices known as nullification and interposition). To do otherwise would be to substitute the rulings of the Court for the Constitution, a move that has and will continue to subvert our very system of government.
Zachary Garris (MDiv, Reformed Theological Seminary) is president of the Federalist Society at Wayne State University Law School. He writes at KnowingScripture.com, a Bible resource site, and TeachDiligently.com, a Christian education site with resources for the home, school, and church.