Op-Ed: Abortion Isn't a States' Rights Issue – It's Already 100% Illegal Under the 13th Amendment

The leaked draft majority opinion written by Justice Samuel Alito and published by Politico has raised a storm of controversy in its argument to overturn Roe v. Wade and “return authority to the people and their representatives.”

But which representatives? The states or Congress?

A trending view has emerged that should the Supreme Court overturn Roe, the right to enact pro-abortion laws would return to the individual states. Such an outcome, unfortunately, would only further complicate the abortion turmoil.

“Congress shall have power…”

It is first and foremost the duty of Congress to protect all persons, irrespective of size or seniority or color or other discriminatory distinctions. This is set out specifically in the 13th Amendment, Section 2. In this section, Congress is formally given direct authority over the states to enforce by “appropriate legislation” the states’ compliance with the amendment.

A majority in the House of Representatives and in the Senate must be persuaded immediately to take a new and clearer look at the 13th Amendment’s veto of treating human beings as property. When the Constitution was written, it was agreed that humans are never to be owned as private property; rather, they are to be recognized as persons.

Yet the false idea lingers that abortion must remain merely a states’ issue. Such a reversion of abortion jurisprudence to the mere discretion of each individual state is irreconcilable with the duty of Congress, a duty clearly formalized in the Constitution.

Indeed, the congressional assumption of responsibility for eliminating the practice of chattelhood is mandated in the 13th Amendment, which requires Congress to abolish any claims to a right to own any person — not just the enslaved.

In keeping with this logic, the abolition of procured abortion targeting unborn children as their mothers’ disposable property must be enforced. The recognition and protection of children in their mothers’ wombs as human beings (not chattels) must be re-established on a secure and legal footing.

Legislative enforcement here is to have as its goal the protection of those of our posterity who are at imminent risk of being aborted. Since Roe v. Wade, over 63 million little ones have been treated as mere property instead of as human beings.

Why have these millions of American children been subjected to programmed lethal violence while in their mothers’ wombs? How can this be reconciled with the Constitution’s stated purpose to secure the blessings of liberty to our posterity?

The 13th Amendment is self-executing.

Unlike most amendments to the Constitution, the 13th is self-executing.

Section 1 directly abolishes slavery and thus, even without the enactment of legislation by Congress, reaches misconduct by private individuals (slaveholders and others who claim personal ownership of human beings in their power and under their care).

To remove any doubt as to whether persons other than slaves (e.g., as we contend here, unborn children) can share in the protection afforded by the 13th Amendment, the Supreme Court has affirmed that, although “negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter.”

The Supreme Court subsequently asserted that “this Amendment … is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect, it abolished slavery, and established universal freedom.”

It is this “unaided force and effect” of the 13th Amendment that Congress should now invoke in order to strike down all state legislation that has served to reinstate the prohibited treatment of individual human beings as chattels.

Constitutional integrity must be restored.

In criticizing Roe v. Wade, strict constitutionalists like Supreme Court Justices William Rehnquist, Byron White, Antonin Scalia and Clarence Thomas were right to maintain that the Constitution does not speak directly to the question of abortion.

But they were wrong not to recognize just how directly the 13th Amendment speaks to the responsibility of Congress to enforce the abolition of mistreating defenseless human beings as property, which is at the dark heart of the practice of abortion.

The 13th Amendment commands that slavery be abolished, not merely regulated by the states. Slavery (ownership of a human being) shall not “exist within the United States”; it is to be totally eliminated — unequivocally. It was for this very purpose that Section 2 of the amendment awards to Congress the power and the implied duty to implement this abolition by “appropriate legislation.”

Under the 13th Amendment, it is solely the solemn duty of Congress (not the Supreme Court and not the individual states) to provide overriding legislation to abolish chattel abortion throughout the United States.

Abortion must not simply be regulated by each individual state on Justice Harry Blackmun’s “may, if it chooses” basis. Maltreatment of our posterity as chattels to be aborted at the discretion of their “owners” must be completely abolished under the 13th Amendment.

There is a need to work urgently for clear-sighted, cross-party majorities in both the House and the Senate, good men and women who possess the intellectual integrity and the steadfast will to recognize and confront the fundamental injustice of the routine killing of the unborn.

For a reasonable person, there is nothing in the Constitution that could with any credibility endorse a blanket right to deliberately kill these smallest daughters and sons being nurtured in their mothers’ wombs. Such a fiction directly sabotages the immutable natural law principles upon which the constitutional architecture of the United States was founded.

The Supreme Court erred.

That error is now being recognized.

It’s time for Congress to put it right.

This article appeared originally on The Western Journal.