Is Roe v Wade the Law of the Land?

Since the Supreme Court passed down their landmark Roe v Wade opinion on January 22, 1973, approximately one and a half million unborn children have been sentenced to death each year in America. People who campaign for legalizing the murder of the unborn frequently use the slogan “Roe v Wade is the law of the land,” but this is contrary to what the supreme law of the Land actually says. Article I Section 1 Clause 1 of the US Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Given that “all legislative powers” are vested in the Congress of the United States, then no legislative powers are vested in either the Executive or Judicial branches. The judiciary, without any legislative power, cannot make law. It is for this reason all decisions passed down from the court, since its establishment under the US Constitution, begin with the header, “Opinion of the Court.”  Understanding this fact makes it clear their decision in Roe v Wade is only their opinion applicable to that case and is not law.

In making their decision, the 1973 Supreme Court overturned approximately 100 years of established, accepted, and upheld statute law. Until 1973, anti-abortion statutes had been on the law books for over a century in many States. Connecticut, in 1821, was the first State to enact abortion legislation and prior to that, abortion was most likely not prevalent enough to merit State statute law, but it had been a part of common law prior to America’s founding. After the 1973 court passed their landmark decision, every State, in fear of losing a protracted court battle, repealed their anti-abortion statutes as if the Supreme Court’s opinion was established law. If it seems odd that the opinion of one court could overturn over 200 years of common law and over 100 years of clearly defined and upheld statute laws, it is because the 1973 court used a different standard for interpreting the Constitution than had been previously used by most of the other supreme courts[1] in our nation’s history.

Most previous courts subscribed to the higher law principle.  Although the US Constitution is the supreme law of the Land it is not the highest law in the land. Our founders, in the Declaration of Independence, by appealing to “Laws of Nature” subscribed to the higher law principle by which they understood God’s Law supersedes all others. William Blackstone[2] described the clear connection between the Laws of Nature and God’s supremacy, “This law of nature, being co-eval [coexisting] with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force,…, from this original.” The 1973 Supreme Court did not use the higher law principle as most other courts in America’s history have. But, if one court can make such a ruling then another court can counter their opinion. When overturning precedents set by prior courts, many left leaning individuals cry ”stare decisis, stare decisis” which is Latin for “stand by things decided.”  In stare decisis both the left and right can agree, we need only go back to the original precedent.

In light of the higher law principle, some Christians actually use the Bible to attempt to justify their endorsement of abortion. A common argument for this position reasons; since God breathed the breath of life into Adam’s nostrils to bring him to life, babies are not alive until they breathe air. Despite this interpretation, the biblical case for life beginning at conception is clear and well defined. Job, in cursing the day his life began, claims as a part of his curse that his life began at conception.[3] In Psalms, David speaks of the continuity of personhood from conception to adulthood when he expresses how God “wove him in his mother’s womb.”[4] David also speaks of the continuity of sinfulness, a distinctly human characteristic, from conception to adulthood,[5] and Luke, in three verses, speaks of distinctly human characteristics from conception to adulthood.[6] Finally, in both Genesis and 1 Samuel the Bible speaks of conception as a gracious work of God.[7] From these verses it is clear the Bible asserts life begins at conception and God is central to the process.

The biblical case against abortion is also clear and well defined. Exodus[8] delineates that if a person, through negligent behavior, strikes a woman with child and the woman or the child is injured, then the negligent person will have the principle of life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise applied to them. A discerning person must ask themselves, if accidental abortion is deemed a capital punishment by biblical law then how much more is intentional abortion or a conspiracy to commit murder against unborn babies deserving of the same punishment?

Based on the majority opinion for the 1973 court, which was written by Justice Blackmun, it is obvious the court did not subscribe to the higher law principle.  In support for his decision, Justice Blackmun references human precedents for abortion throughout history beginning with Greek pagan religion. He also notes that English common law, at the time the Constitution was written, gave more latitude for early pregnancy abortion than did most State statute laws over the previous century leading up to 1973. If he, and the other six justices who voted in the majority, had applied the higher law principle, they would not have referenced pagan religions for support of their argument, but they would have noted that earlier common law was in error, because it was contrary to God’s law.

In his opinion, Justice Blackmun also made the statement, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” It seems reasonable that if the court cannot understand or determine when life actually begins, they should error on the side of caution to protect the rights of the unborn who, according to the court, may be “alive”. The judiciary instead, found a woman’s right to privacy implicit in the Fourteenth Amendment’s due process clause as their grounds for ruling in the plaintiff’s favor. In doing so, the 1973 Supreme Court avoided giving their opinion on when life begins and then consented to summary execution of the unborn child while ignoring the unborn child’s right to due process or to a trial by jury; both specifically protected by the Fifth and Sixth Amendments. As Americans we must ask the court system and law enforcement agencies, exactly what have these children done to deserve a death sentence and summary execution without protection of their rights spelled out in the Bill of Rights? The court’s decision in Roe v Wade gave permission to the plaintiff to commit murder, but murder can never be made legal and it can never be deemed a right,[9] even if it violates implied rights to privacy in every amendment.

More important than due process rights and the right to a trial by jury is the right to life. The right to life is so inherent to humans that the founders listed it as the first unalienable right endowed by our Creator. In making their decision, the 1973 Supreme Court ignored the unborn child’s right to life.

To counter the abortion movement, anti-abortionists have formed political lobby groups asking people to vote for “pro-life” candidates and in turn pro-life candidates, when elected, have done very little to change the situation. The result of 39 years of anti-abortion lobbying is over 54 million children murdered in America with tax payer money subsidizing the murder. Much of the paralysis to stop abortions is caused by the mistaken belief we must somehow overturn the court’s decision in Roe v Wade, before States can re-institute anti-abortion statutes. If Americans are serious about stopping abortion in our land, we must stop cowering to the Supreme Court, which is the weakest branch of the national government. They are not a law making body, so their opinion is limited to the case in which they give it. Furthermore, Supreme Court Justices and federal judges are always answerable to the American people, or in other words they are not the final authority on the Constitution if they grossly misinterpret it.[10] We must instead demand our States re-implement anti-abortion statutes and further demand impeachment of any federal judge who tries to overturn them. This is where pro-life candidates at all levels of government will earn your vote!

There is a price to be paid for a nation that violates the unalienable right of life without due process of the law. Of the six things listed in Proverbs that God hates “hands that shed innocent blood,” [11] is among them and a nation that endorses such behavior will equally share in His wrath. As citizens of America, we should protect the rights of every citizen and especially those who are unable to protect them themselves, vice proactively or apathetically violating them.


[1] Courts are generally defined by the Chief Justice who presides over them

[2] American Founding Principles, Ruled by Man Not by Law, September 10, 2012.

[3] Job 3:3

[4] Psalm 139:13-16

[5] Psalm 51:5

[6] Luke 1:15, 41, 44

[7] Genesis 30:1-2; 1 Samuel 1:19

[8] Exodus 21:22-25

[9] American Founding Principles, The Origin of Rights, August 27, 2012.

[10] American Founding Principles, Impeaching Supreme Court Justices, August 14, 2012.

[11] Proverbs 6:16-17

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One thought on “Is Roe v Wade the Law of the Land?

  1. ‘The judiciary instead, found a woman’s right to privacy implicit in the Fourteenth Amendment’s due process clause as their grounds for ruling in the plaintiff’s favor.’ I find this appalling. Don’t all criminals want the right to their privacy? What next- child molesters being given unrestrained access to children because otherwise their rights to privacy are being violated?
    Thank you AFP for a well written and stirring commentary.

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