Hold on to your hats, but it actually is the responsibility of the judiciary branch to decide what is and is not a protected right under the constitution. A lot was said over the past week in support of the pro-life legislation passed in Texas two weeks ago.
But first I’ll say, I agree with you. James Madison was not thinking about abortion when he drafted the Bill of Rights, because abortion was legal. Under a common law system, which the United States is, abortion was merely a consequence of having women in society—you cannot help the necessity of abortion when humanity is involved. It wasn’t until the late 1860s that abortion was politicized and then declared illegal in 18951. Until this politicization of a woman’s life, abortion was merely a procedure necessary for saving a woman’s life.
According to the 7th ed. Judicial Process and Policy Making, in a common law system, “it is the judge who enunciates law in the course of resolving disputes… legal thinking in common law systems emphasizes the concrete rather than the general and places its faith in experiences rather than abstractions.2 This means that it is the judicial branch, not the legislature, that is responsible for interpreting the law based on precedents and the constitution that, to the best of their ability, represents America as a whole. Roe v. Wade is in no way “shaky,” but merely following suit in terms of how the Supreme Court interprets the constitution.
If Justice Blackmun was “just looking for a right to abortion” when he gave the majority opinion of Roe v. Wade, then I guess Justice Abe Fortas, who delivered the opinion in Tinker v. Des Moines was only looking for the right to wear an accessory to public school.
For those following along at home, Tinker v. Des Moines (1969) is a Supreme Court case deciding that students do not shed their constitutional right, the freedom of protest, when they go to school. Meaning that the ban on armbands protesting the Vietnam War was unconstitutional. The Supreme Court interpreted the act of wearing an armband as legal under the principle of the right to protest, which is found in the First Amendment. Do you think the framers of the constitution were thinking about armbands?
The constitution was not made to be a stagnant document. It was designed to be amendable; it was designed to withstand the ebb and flow of American society as we grow and evolve as a nation. This is why the ninth amendment has been used as justification for broadening the rights of Americans—because it would have been impossible for the Framers to have distinguished every individual right that belongs to Americans. They weren’t thinking about Miranda rights, they weren’t thinking about masks, they weren’t thinking about the right to cannibalize your romantic partner (if consensual). They were drafting the constitution with the idea that it must be a foundational document, one that could be used to guide the decisions of the American judiciary, but not dictate its future for the rest of time.
There is absolutely no justification in the constitution for denying abortion. Abortion is a medical practice that saves lives and is necessary, legal, and “American” in the sense that American’s depend on abortion, no matter the state they are in. It is not the government’s purpose, in any branch, to determine if a medical practice is morally good or evil. It is the purpose of the government to determine that abortion is a private matter that the United States has no authority to interrupt.