I seem to be writing about abortion a lot recently... go figure. Roger Pilon has an excellent explanation of why Roe v. Wade should be overturned and the issue of abortion returned to the states. It's really pretty simple:
And so the basic substantive question was clear: When does the right to life begin?
On that question, the Constitution is indeed silent--mostly. Here's why. We would all agree, I hope, that if a doctor took the life of a baby one day after birth, it would be infanticide--murder. Thus, states that protected older babies but not younger ones would doubtless be subject to equal protection challenges, at least, and would probably lose. But if taking the life of a baby one day after birth is murder, what is the difference if the act is performed one day before birth? It strains credulity to suppose there is any real difference. Well, what of two days before birth--and so on down the line? It's impossible to draw a principled line at which to say, precisely, that this is where the right to life begins. The court's trimester taxonomy in Roe was its own invention, entitled to no more constitutional support than anyone else's opinion on the matter.
And so we come to the jurisdictional question: Who decides? And on that the Constitution is not silent. Whether we believe that the right to life begins at conception or at some point over the next 270 days, we all believe, I hope, that it begins at some point along that line. We all agree, that is, that there is some point at which abortion amounts to murder. We just can't agree about where that point is. And so we're faced with a classic line-drawing problem, not unknown in other areas of the law, but here involving the criminal law and, therefore, the general police power--the power that belongs, under the Constitution, to states.
Legislatures and Congress should be drawing lines, not the courts.