"When Roe vs. Wade was decided in 1973..."

"When Roe vs. Wade was decided in 1973, striking down abortion laws all over the country, even some supporters of abortion were embarrassed by the decision as a matter of constitutional law.  John Hart Ely, for instance, wrote in the Yale Law Review: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure."  The decision, he said, "is not constitutional law and gives almost no sense of an obligation to try and be."

The federal government should not play any role in the abortion issue, according to the Constitution.  Apart from waiting forever for the Supreme Court justices who will rule in accordance with the Constitution, however, Americans who care about our fundamental law and/or are concerned about abortion do have some legislative recourse.  Article III, Section 2, of the Constitution gives Congress the power to strip the federal courts, including the Supreme Court, of jurisdiction over broad categories of cases.  In the wake of the 1857 Dred Scott decision, abolitionists spoke of depriving the courts of jurisdiction in cases dealing with slavery.  The courts were stripped of authority over Reconstruction policy in the late 1860's. 

If the federal courts refuse to abide by the Constitution, the Congress should employ this constitutional remedy.  By a simple majority, Congress could strip the federal courts of jurisdiction over abortion, thereby overturning the obviously unconstitutional Roe.  At that point, the issue would revert to the states, where it constitutionally belongs, since no appeal to federal courts on the matter could be heard. (I have proposed exactly this in H.R. 300.)

Let us remember, though, that the law can do only so much.  The law isn't what allowed abortion; abortions were already being done in the 1960s against the law.  The courts came along and conformed to the social and moral changes that were taking place in society.  Law reflects the morality of the people.  Ultimately, law or no law, it is going to be up to us as parents, as clergy and as citizens- in the way we raise our children, how we interact and talk with our friends and neighbors, and the good example we give- to bring about changes to our culture toward greater respect for life."  -Page 60 & 61 of The Revolution, A Manifesto