AUSTIN, Texas -You don’t play football on an ice hockey rink.

Texas just provided a shining example of how the abortion issue was intended to play out in its proper arena.

At the state level – like football on a football field.

After weeks of contentious debate, the Texas Senate gave final approval to strict restrictions on abortion providers Friday night. HB2 prohibits abortions after 20 weeks. The legislation also requires abortion doctors to have admitting privileges at nearby hospitals, will allow the procedure only in surgical centers, and places limits on where and when women can take pills that induce abortions.

Gov. Rick Perry was part of the impetus behind the bill, calling a special session to reconsider the measure after a filibuster by Sen. Wendy Davis killed the legislation during the regular session.

“Today the Texas Legislature took its final step in our historic effort to protect life,” Perry said after the Senate give its final approval 19-11.

Once Perry inks his name on the bill, we will witness a shining example of how the abortion issue was never intended to play out – in the federal courts.

Football on an ice hockey rink.

Nothing polarized Americans like the abortion debate.  Many will hail Texas for protecting the lives of the unborn. Others will demonize the Lone Star State as backward and waging a war on women. But no matter what view you hold, the decision was Texas’ to make. Nothing in the Constitution delegates any power for the federal government to legislate on abortion, and since the issue falls under the objects left to the states and the people, the federal courts should butt out.

In 1973, the U.S. Supreme Court interjected the federal government into the issue, ruling that a Constitutional right to privacy enforced through the due process clause of the 14th Amendment protects the right to an abortion. The majority opinion in Roe takes incorporation – a concept concocted out of a bastardized understanding of the 14th Amendment – and uses it to enforce a questionable provision conjured up out of the Bill of Rights to empower the feds to serve as the abortion enforcement squad.

This bears repeating: abortion was never intended to become a federal issue. It clearly falls within the objects “pertaining to the life, liberty and property of the people” that James Madison said would remain under state jurisdiction in Federalist 45.

Row v. Wade was unconstitutional government by judiciary. Justice Byron White alluded to this in a blistering dissent in Roe.

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

Americans simply cannot resist the temptation to federalize every issue when things don’t fall their way at the state level. Opponents of these new restrictions on abortion in Texas will certainly march straight to federal court, hoping the liberty enforcement squad in D.C. will override the will of the duly elected lawmaking body in Texas. Of course, the pro-life crowed has played the D.C. game for years too, wasting time, money and energy begging federal judges to change their mind, trying to elect the “right” guy to pick the “right” judge, and imploring Congress to pass sweeping national abortion legislation – equally unconstitutional.

Both sides play a fools’ game pleading with the feds.

A football game on an ice hockey rink.

Should pro-choice advocates continue fighting in Texas? Certainly. But they should seek remedies in state court under the Texas State constitution. That is the proper arena for an issue that was always meant to remain the purview of states and the people.

Football on a football field.

Those on both sides of the issue who claim the abortion debate revolves around some of our most fundamental rights as Americans make a mockery of their respective positions when they ignore the rule of law and insist that the federal government involve itself in a battle that it has ZERO authority to wade into.

By all means pro-lifers and pro-choicers, fight it out! But wage the war in the proper arena – at the state level. Your federal battles have caused enough collateral damage to the American system already.


Mike Maharrey

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