Amendment of 1868
By David W. New, Esq.
The Covenant News ~ February
In 1973, mass abortion became legal in the
United States. This occurred when the U.S. Supreme Court issued
their opinion in Roe v. Wade. However, most Americans are
unaware that there has been a Federal Abortion Amendment on the
books since 1868. According to the U.S. Supreme Court, a federal
amendment to allow abortion on demand has existed since the days
of the Civil War. It is doubtful that anyone knew it at the
time, but when the American people ratified the Fourteenth
Amendment they passed a Federal Abortion Amendment to the U.S.
Constitution. According to the Supreme Court this is a true
statement. The so called 'right to an abortion' is based on the
Fourteenth Amendment which was ratified in 1868. The Fourteenth
Amendment is one of three amendments known as the Civil War
Amendments. The purpose of this article is to persuade the
reader that the 'right to an abortion' cannot be found in the
Constitution. Neither the framers of the Constitution in 1787
nor the framers of the Fourteenth Amendment in 1868 ever
intended to create a right to an abortion. I will argue that the
whole body of law involving abortion is nothing more than a
fabrication invented by the members of the Supreme Court. I will
discuss why this is true and suggest some other areas in which
the Court has been creative through the Fourteenth Amendment.
Our discussion will begin with the legal basis for abortion in
the United States and the link between judicial activism and the
Fourteenth Amendment. Finally, I will discuss the true meaning
of the Fourteenth Amendment and suggest that the Supreme Court's
argument for abortion is a hopeless contradiction.
THE LEGAL BASIS FOR ABORTION: THE FOURTEENTH AMENDMENT
In 1992, the U.S. Supreme Court stated the legal basis for
abortion. According to the Supreme Court, the constitutional
right to an abortion exists because of the Fourteenth Amendment.
The Fourteenth Amendment has a Due Process Clause. The Due
Process Clause in the Fourteenth Amendment is the current
Federal Abortion Amendment according to the High Court. For the
benefit of those who do not know what the current Federal
Abortion Amendment says, please allow me to quote it for you. It
says: " . . . nor shall any State deprive any person of
life, liberty, or property, without due process of law."
Admittedly, the word 'abortion' does not appear in the clause.
Indeed, the word 'abortion' does not appear anywhere in the
Constitution. But according to the Supreme Court the word
'abortion' is in the Due Process Clause. In their opinion, the
right to an abortion is in the word "liberty"
in the Due Process Clause. This is what Justice Sandra Day
O'Connor said in 1992. Note 1. Thus, we could substitute
the word 'abortion' for the word "liberty" if we
wanted to. Therefore, the Fourteenth Amendment is in a sense the
current Federal Abortion Amendment. The first time the Supreme
Court said that there was a federal right to an abortion was in
1973. This is the year the Supreme Court decided the Roe v.
Wade case. However, in Roe v. Wade, the Supreme Court
did not clearly state what the legal basis for abortion was.
This did not occur until 19 years later in 1992. It is likely
that the Supreme Court based Roe v. Wade on the word
"liberty" in the Due Process Clause but it is not
clear. Note 2.
JUDICIAL ACTIVISM AND THE FOURTEENTH AMENDMENT
The Supreme Court has used the Fourteenth Amendment for other
purposes besides making abortion legal. In 1962, the Fourteenth
Amendment was converted into a 'Federal School Prayer
Amendment.' In this instance, the Fourteenth Amendment was used
to ban all vocal prayer during classroom time in the public
schools. This occurred in the Engel v. Vitale case. In
effect, the word "liberty" in the Due Process Clause
was interpreted to mean 'school prayer' or 'prayer in the public
schools.' The Fourteenth Amendment was used again in the
following year to remove the Bible as a text to teach moral
values to public school students. Thus, the Fourteenth Amendment
gave the Supreme Court the ultimate power over the separation of
church and state in America. However, this is not all it did. If
the High Court is correct, when the Fourteenth Amendment was
ratified in 1868, the highest judicial body in the United States
was converted into a super 'National School Board.' According to
the Supreme Court, the Fourteenth Amendment gave them the
ultimate control over the nation's public school curriculum. For
example, in 1987, the National School Board ruled that only
Charles Darwin's theory of evolution was a proper subject for
the public school curriculum. Note 3. More recently, the
drum beats from the Court have sounded again but this time in a
new direction. In 2003, the U.S. Supreme Court converted the
Fourteenth Amendment into a 'Federal Sodomy Amendment.' This
occurred in the infamous Lawrence v. Texas case. Here the
High Court felt compelled to protect two men engaging in
homosexual sex. Unless something is done to stop them, it is
likely that the Supreme Court will use the Fourteenth Amendment
as a 'Federal Gay Marriage Amendment.' Right now the Court can
use the Fourteenth Amendment to legalize gay marriage in the
United States. All that is needed is for five members on the
Supreme Court to agree that the word "liberty" in the
Due Process Clause includes the right of homosexuals to marry.
It's that simple.
It should be obvious that there is a strong link between
judicial activism and the Fourteenth Amendment. When
conservatives complain about judicial activism in the courts, in
many cases they are really talking about the Fourteenth
Amendment. The Fourteenth Amendment has become a 'wild card' at
the courthouse. The Supreme Court can force any social policy on
the American people simply by manipulating the word
"liberty" in the Due Process Clause. Activist judges
can dictate a policy for the United States Government in a
manner that neither the President nor the Congress of the United
States could ever achieve. Indeed, when it comes to social
issues, the U.S. Supreme Court has more power than the
President, the Congress and all state and local governments combined.
This is true because it is difficult to reverse the Court's
decisions. It is difficult to amend the U.S. Constitution. As an
institution, the U.S. Supreme Court has truly become America's
politburo. Given the above record of abuse by the Court, the
fact that the 'right to an abortion' is based on the Fourteenth
Amendment should alert the reader that the claim is probably
THE TRUE MEANING OF THE FOURTEENTH AMENDMENT
A person might be tempted to think that the Fourteenth Amendment
is a bad amendment. This would be a mistake. The Fourteenth
Amendment is a good amendment. The problem is not with the
Fourteenth Amendment but with its abuse. Shortly after the Civil
War, the United States passed three amendments to the
Constitution known as the Civil War Amendments. The purpose of
these amendments was to correct the injustice of slavery in
America. The first of the Civil War Amendments was the
Thirteenth Amendment. This was passed in 1865. The Thirteenth
Amendment said that slavery was no longer legal in the United
States. At last, the issue that almost destroyed the
constitutional convention in Philadelphia was finally settled.
The curse of slavery was ended in America. The Fifteenth
Amendment was passed in 1870. The Fifteenth Amendment protected
the right of African American men to vote. The Fourteenth
Amendment was passed in 1868. The Fourteenth Amendment reversed
the Supreme Court's infamous Dred Scott decision of 1857. In
Dred Scott, the Supreme Court said, among other things, that
African Americans were not citizens of the United States.
Section 1 of the Fourteenth Amendment made all African Americans
citizens of the United States and of the state in which they
live. Section 1 of the Fourteenth Amendment says: "All
persons born or naturalized in the United States and subject to
the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside." Thus, an amendment that
was intended to correct an injustice in America has been
hijacked by activist judges to promote their personal opinions.
THE TRUE MEANING OF THE WORD "LIBERTY"
The Due Process Clause says: " . . . nor shall any State
deprive any person of life, liberty, or property, without due
process of law." To the framers of the Fourteenth
Amendment, the word "liberty" in the Due Process
Clause referred to personal bodily freedom. There is no
historical evidence to suggest that they believed it referred to
abortion, family law, or to prayer in the public schools. The
purpose of the Due Process Clause was to make sure that everyone
had a fair trail. The Due Process Clause answers this question:
'When may the government punish a person?' The answer is the
government may deprive any person of life, liberty or property
if it is done according to due process of law. Due Process of
Law is another way of saying that there must be a 'fair trial.'
To deprive a person of "life" refers to capital
punishment. To deprive a person of "liberty" refers to
incarceration. To deprive a person of "property"
refers to monetary fines (traffic tickets) or seizures of
property by the government. Thus, the Due Process Clause is
largely concerned with criminal matters. The Fourteenth
Amendment was passed to insure that African Americans as well as
everyone else would receive a fair trial during a criminal
proceeding. It was not intended to become a 'wild card' at the
THE FIFTH AMENDMENT REVEALS A MASSIVE CONTRADICTION
There is a massive contradiction in the Supreme Court's argument
for abortion. The problem centers on the word
"liberty" in the Due Process Clause in the Fourteenth
Amendment. There are two Due Process Clauses in the U.S.
Constitution. There is one in the Fifth Amendment and there is
one in the Fourteenth Amendment. The Due Process Clause in the
Fifth Amendment was the model for the one in the Fourteenth
Amendment. The Fifth Amendment's Due Process Clause says the
same thing as the one in the Fourteenth Amendment. It says:
". . . nor [shall any person] be deprived of life, liberty,
or property, without due process of law." [Words added]. It
means that the Federal Government cannot deprive any person of
their life, liberty or property unless there is a fair trail.
The Due Process Clause in the Fifth Amendment originally applied
only to the Federal Government. Therefore, after the Civil War,
in order to require the state governments to be bound by the
same standard, the Due Process Clause was added to the
The problem is that the Supreme Court interprets the word
"liberty" in two very different ways. The way the
Supreme Court interprets the word "liberty" in the
Fourteenth Amendment is very different from the way they
interpret the word "liberty" in the Fifth Amendment.
For example, to date, the Supreme Court has never said
that there is a Fifth Amendment right to an abortion! Most
Americans know that the purpose of the Fifth Amendment is to
protect you and your rights during a criminal proceeding. How
many times have we heard: 'On the advice of my counsel, I plead
the Fifth Amendment.' Even Hollywood knows what the Fifth
Amendment is for. And yet the Supreme Court continues to argue
that the word "liberty" in the Fourteenth Amendment
refers to abortion even though such a claim for the Fifth
Amendment would be absurd. If the word "liberty" in
the Fifth Amendment cannot logically refer to abortion then why
should it be any different for the Fourteenth Amendment? For
more than 200 years, the word "liberty" in the Fifth
Amendment has meant personal bodily freedom. Why should it mean
something totally different in the Fourteenth Amendment? This is
a good question. Interestingly, at one time, the Supreme Court
said that the word "liberty" in the Fifth and
Fourteenth Amendments should mean the same thing. Note 4.
The reality is the entire body of law for abortion is a sham, a
judicial fraud. This is also true for issues involving school
prayer and homosexuality. For example, no one has ever said that
prayer in the public schools violates the Fifth Amendment. Not
even the ACLU will claim that Bible reading violates the Fifth
Amendment. And yet this is said about the Fourteenth Amendment
all the time. The inconsistency here is obvious. The way the
Court interprets the word "liberty" in the Fourteenth
Amendment is a hopeless contradiction. There can be no question
that the Court uses the Fourteenth Amendment for political
purposes. The Fifth Amendment proves that the Supreme Court is
engaging in judicial activism. It is time for this nonsense to
stop. Abortion in America is a source of great pain and
suffering for everyone. However, the horror of abortion becomes
even more painful when the so called 'right to an abortion' is
proven to be a complete fraud.
For a more in depth study of judicial activism and the Bill of
Rights, read my booklet: The First Amendment and the Bill of
Rights for Beginners. For more information visit: http://www.myfirstamendment.us/
Note 1. Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833 at 846 (1992).
Note 2. Roe v. Wade, 410 U.S. 113 (1973).
Note 3. Edwards v. Aguillard, 482 U.S. 578 (1987).
Note 4. Heiner v. Donnan, 285 U.S. 312 at 326 (1932).