Right To Life vs. States Rights and Rick Perry

I wrote last week about Governor Rick Perry’s walk-back of his comments about gay marriage. At a recent fundraiser, he invoked the 10th amendment to argue that New York’s decision to legalize gay marriage was just “fine” with him. He later told Tony Perkins that he merely meant to express his belief in the right of individual states to decide such matters.

Now Perry has done it again. A few days ago in remarks to reporters in Houston, Perry invoked the 10th amendment again to say that if Roe v. Wade were overturned, the matter should then be decided by the voters in each state. Presumably, then, just like with his view on gay marriage, abortion could be legal in some states but illegal in others. It would just depend on the voters of each state. In his own words:

“You either have to believe in the 10th Amendment or you don’t. You can’t believe in the 10th Amendment for a few issues and then [for] something that doesn’t suit you say, ‘We’d rather not have states decide that.'”

I know that Governor Perry has been a friend of the pro-life cause, and I am grateful for that. But the pro-life cause cannot be reduced to a concern for states rights. If Roe v. Wade were overturned, the matter would indeed go back to the states. Nevertheless, a principled pro-life person will not be content until life is protected in every state of the union. That is why pro-lifers by and large would support a human life amendment to the Constitution.

But Perry’s remarks reveal once again that he has not fully grasped the fundamental issue. Is he really taking the position that would allow unborn babies to be killed in some states and not in others? Does he not see that his position is not only morally absurd but that it is also unconstitutional?

Robert P. George has responded to Rick Perry, and he correctly explains that the abortion issue is not a “states rights” issue. George writes:

“It is important for Governor Perry and for all Americans to recognize the responsibility of the national government under Section 5 of the 14th Amendment to ensure that the guarantees of Section 1 of that Amendment are honored by all 50 states. Those guarantees include the following: ‘nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ As a matter of indisputable scientific fact, the child in the womb is a living human being. As a matter of moral truth, deeply embedded in our legal and constitutional traditions, all human beings are persons. Thus, by the clearest logical implication, the national government is empowered and obligated by our Constitution to ensure that unborn human persons are protected in their most fundamental right—the right to life. Because this is an expressly delegated power, there is no 10th Amendment basis for denying or relieving the national government of its responsibilities, along with the states, to protect the child in the womb.”

I am hoping that Governor Perry will rethink his frequent appeals to the 10th amendment. His appeals to “states rights” are coming off as a way to punt the ball on second down. He is avoiding the real moral questions at stake when he does this, and he comes across as an ineffective spokesman for the most important moral issues of our time.


  • rachel

    OK i know i am showing my ignorance for not knowing and my laziness by not looking it up, but how do the states deal with murder and rape and stealing. aren’t those state prohibitions? is there also a nation law against murder?

  • donsands

    He seems focused on Texas, and politics, and not truth, and the heinous crime of abortion in all its ugliness. Sad.
    My son-in-law asked me once, “What is the most important issue when thinking about voting for a candidate? I said, “Abortion.” And I said at the time, “And with Obama, infanticide.” You can tell a lot about a person if he declares a botched abortion must stay its course, and so the baby that is out of the womb alive, must die. Abortion is wicked. Rick Perry simply needs to say so.

    have a terrific Lord’s day. thanks for posting this. Thanks for proclaiming the good news of Jesus and the truth. All for the Cross. Gal. 6:14

  • Melissa

    Gov. Perry is correct from a legal perspective – which is what he is obligated to follow as an elected official. Prior to Roe, abortion was a state issue. In Roe, the Supreme Court declared that abortion is a federally protected constitutional right. For the record, I believe their decision was wrong. I understand the argument that the 5th and 14th Amendments should be viewed to include the unborn, but that is a legal argument subject to other interpretations. I think what Perry is saying is that there is no federally protected right to abortion and that absent Congressional action to outlaw it (perhaps via the 5th and 14th amends), the issue would return to the states.

    I think we need to give the Governor the benefit of the doubt and not get hung up on a single issue. The 2012 campaign is about the economy, not abortion. Perry is as pro-life as they come but as President, he would be at the mercy of the Court and Congress to make any progress at the federal level.

  • Jason


    The 14th Amendment makes room for the Federal Government stepping in to the states activities if the rights in section one are not enforced at the state level. It is a tacit assertion that those rights are to be defended at the state level, and if not, by the Federal government.

    It is a slippery slope, as “liberty” can have a lot of wiggle room. If narrowly considered (that is, ignoring the ontological state of the baby) “Liberty” or even in a perverse way, “life” could be said to be the legal reasoning behind Roe, and allows – for good or for evil – SCOTUS to adjudicate on all manner of things at the state and local level (e.g.: nativity displays). But this only serves to show that no law can cover all matters, and vigilance in defending and regulating laws can not stop until Christ returns, that is, no law can cover every crime and every law can be abused by those in power, and so vigilance is necessary.

  • Jason


    In ostensibly qualifying the state of the unborn, you wrote, “but that is a legal argument subject to other interpretations.”

    This is the same method of avoidance that all defenders of abortion use, that is, to just ignore the baby.

    George’s arguments (that is, the logical and biblical points addressing the ontological state of all parties) in this particular matter are left entirely unaddressed in Perry’s response. All he needs to do is to say that he would appoint judges that would uphold the 14th amendment, that is, that the baby is a human being (indisputable) and cannot be legally killed unless the mother will most likely die without medical intervention. Instead he uses the libertarian dodge which is entirely amoral.

    The nature of states rights emanates from something else, it is not an end in itself, and that right is always predicated on the presupposed value of the individual AND the presupposed fallenness of the individual. Your argument ignores both.

  • Ron

    I appreciate your concer with the politics of our country and grave concern for the unborn. I do wonder though if you are being overly pessimistic – and before you quote that and say life can never qualify this statement, know that I agree. However, what if before it could get to a national level, first Perry must make it to the White House? I hate the politics of politics just as much as the next, but this is the reality of 21st century America.

    I find it hard to swallow the fact that you are bashing in my opinion the most Christ-like & Christ treasuring person in the running for President.

    I guess said in another way, would you rather then have someone who is pro-choice OR someone who is pro-life, state decided? America’s worldview is in need of restoration & if we try jamming it down their throats, we’ll be thrown out before making ANY impact.


    • Denny Burk

      It’s not my aim to “bash” anybody. In the general election, I will support the pro-life candidate, whoever that is. But we are not in the general election season yet. We are still trying to determine who the nominees will be. I want to get the best candidate possible, and one of the key things I’m looking for is who will articulate, defend and promote a consistent pro-life position. Perry can and needs to do better than his performance last week.

  • John Caneday


    With all due respect, you and George are simply wrong on this. If the United States Constitution can be reinterpreted to mean that abortion is a federal crime, where does the list of federal crimes end?

    The U.S. Constitution outlaws only treason (Article 3, Section 3), piracy (Article 1, Section 8), and counterfeiting (Article 1, Section 8). To “find” other crimes in the U.S. Constitution requires the same sort of “Living Document” interpretation that we so loathe in others. You cannot criticize others for the manner in which they interpret the Constitution, yet use the same hermeneutic without falling into the same trap.

    Perry is right that all laws outside from these three specific laws are within the domain of the states. To think otherwise is to believe the Federal government is preeminent, when it has only become so through the nationalistic fervor of the nineteenth and twentieth centuries. This is the very movement that all those who favor limited government must reject, as it is the source of the overbearing state that seeks to oppress.

    I say all this as a firm opponent of abortion and Rick Perry’s politics. Abortion is appallingly wicked, but seeking to use unconstitutional means to make it illegal will only lead to ruin.

  • jigawatt

    Good assesment, Denny.

    I always thought it was silly whenever one of my pro-life friends appealed to states rights to try and outlaw abortion, because I knew that if we conceded the issue to the states, it could be a disaster. Similarily, I never liked it when someone tried to argue “the majority of americans want to outlaw abortion” because, what will happen to that argument when the polls show the opposite (as I think they have)?

  • donsands

    “If the United States Constitution can be reinterpreted to mean that abortion is a federal crime..” John

    So Ronald Reagan was wrong to say The Constitution guarantees the pursuit of happiness for human life?

    • John Caneday

      He was wrong if he meant that the U.S. Constitution has any authority to enforce laws against abortion, yes.

      Read the Constitution, particularly Article 1 Section 8. It takes great effort to enumerate the powers of the Federal Government in very specific ways. There is absolutely nothing there that would imply the authority to outlaw abortion. Or murder. Or theft. Or much of anything, for that matter. It establishes no police force, nothing. These things were all left for the states and local government. So of course the federal government doesn’t have the authority to enforce any laws related to abortion, it simply wasn’t in the scope of the federal powers.

      George’s use of the 14th amendment belies his intent on reinterpreting the scope of the federal government under the light of 19th century radicals bent on granting extra-Constitutional powers to the federal government.

      Perry is right. Unless you’re willing to grant the federal government all sorts of unappealing powers, you must forego the nationalization of the abortion debate.

  • BClark

    I have followed this blog for a long time and I’m almost always right with you, Denny. But I believe you are wrong on this one. As both an ardent pro-life Christian and an attorney, I believe that Perry’s position is correct. Simply because he argues that, under principles of federalism, the states should be permitted to decide the legality of abortion does not mean that he is not opposed to abortion or that he would not strongly encourage each of the 50 states to vote against it. I actually appreciate Perry’s position as being consistent with his broader views on limited federal government. We can’t say the federal government has overstepped its constitutional bounds and has improperly intruded into our lives only on issues about which we disagree.

    As Melissa said above, arguments an be made about the 5th and 14th amendments applying to the unborn. And I am certainly open to such arguments and emotionally hope that such arguments will prevail. But if we are going to claim that the original intent of the founders should be respected in interpretating the constitution (like we do on 1st amendment rights, for example), then we cannot simply make the document mean what we think it “should” mean. I have seen scholars who are pro-life take the position that the 5th and 14th were not intended to cover the unborn. It isn’t that they don’t want it to, they simply cannot be intellectually honest and come to that conclusion. I am not saying I agree with them but you shouldn’t necessarily confuse a person’s constitutional analysis with their own personal policy views.

    The one thing that would clarify all of these issues would be a constitutional amendment clarifying that the 5th and 14th apply to the unborn. I would definitely support that and I believe Perry would as well.

    The bottom line is this: you will not find a more pro-life POTUS candidate than Perry.

  • donsands

    “He was wrong if he meant that the U.S. Constitution has any authority to enforce laws against abortion”

    So murder isn’t under the Constitution.

    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    How about securing the “blessings of liberty” and establishing justice and rpoviding for the common defense. Babies need all this don’t they? But maybe you’re right we can kill them in the USA, if the State says we can murder others. Murder is an option the Constitution writers allowed.
    I don’t see it myself. Ronald Reagan missed it to.

  • Jeff Wright

    Can someone explain to me the downside of 42 states, for example, voting to make abortion illegal while it remains legal in the remaining 8 states COMPARED WITH the present situation where abortion is legal in all 50 states?

    Denny, you point out that the issue will go to the states if Roe v. Wade is overturned and pro-lifers will not rest until all 50 states make abortion illegal. So far no disagreement with Rick Perry. Then you state that pro-lifers support a Constitutional amendment. So does Rick Perry. Then you state that Perry does not fundamentally understand the issues. I respectfully submit that you might not fully understand Rick Perry’s position (which is understandable since he has not yet declared and made them fully known).

    Again, if the matter could be returned to the states by the overturning of Roe v. Wade, what is the problem with a majority of states making abortion illegal while also continuing to push for a Constitutional amendment? Would lives not be saved in the meantime?

    It appears to me that we have a disagreement over tactics rather fundamental principles. I don’t think you’ve made the case that Perry’s position is morally absurd or unconstitutional. With the gay marriage issue in particular, I think you failed to grasp Perry’s position. There was no “walk back” from Perry. Rather it was a chance for people who did not understand his approach to educate themselves. I’m seeing critics walk back their criticism once they understood the situation better rather than Perry making any changes to his position.

  • John Caneday


    I don’t mean to be pedantic, but are you familiar with what the Federal government was when the Constitution was adopted? There was essentially no such thing as a federal crime. Crime was a local matter, dealt with by local government. It wasn’t that the framers of the Constitution didn’t care about crime, they left it to the sovereign states.

    Your argument about “securing the ‘blessings of liberty’ and establishing justice and providing for the common defense” is EXACTLY the argument the liberals use in defending the welfare state (penumbras, formed by emanations). This is precisely the problem. You can’t use this argument if you’re opposed to the welfare state. It is precisely the SAME HERMENEUTIC.

    Oppose abortion, hope Roe is overturned, and then leave it to the states to decide criminal law. Be consistent in how you argue for or against the use of federal power.

  • Denny Burk


    I still think that the 14th amendment’s protection (“no person shall be deprived of life…apart from due process of law”) makes this a federal issue. I want to hear pro-life leaders arguing to overturn Roe v. Wade and to apply the 14th amendment to the unborn. I think Rick Perry fell short of the latter this last week.

    My hunch is that after the pushback from Susan B. Anthony, Robert George, and others, he will not make the same mistake twice. He’ll get his argument in order.

    I’m pushing this issue because there is a libertarian impulse that is gaining some prominence among many conservatives. I sometimes get of whiff of that impulse in states rights rhetoric. I would like to see libertarianism go the way of the dodo.


    • John Caneday


      We respect your desire to see abortion outlawed, but as Jeff Wright notes, when things like abortion become federal issues, there is no room for dissent anywhere in the nation. If abortion were a states rights issue, as I believe it should be, it would be illegal in South Dakota, and maybe even other states.

      But it is currently only in the domain of the federal government, which means it is legal everywhere–including South Dakota.

      The states rights rhetoric is a big deal–without it, the federal government has all the power, with no room for dissent. If you’ve got states that are able to act independently of the federal government, you’re more likely to have just laws at least somewhere in the nation, rather than unjust laws everywhere.

      • Denny Burk

        Dear John,

        Don’t misunderstand me. I support overturning Roe v. Wade and would love for the issue to go back to the states. That would be a better condition than what we have now. I’m simply saying that such a scenario cannot be our end game. Our end game has to be for the elimination of abortion in every state. To make that argument, we have to make a federal case of it (no pun intended). In other words, we need to argue now both that Roe v. Wade is bad law and that the Constitution itself mandates a right to life (via 14th amendment). It’s the latter part that was missing in Perry’s rhetoric last week.

        The pro-life cause doesn’t end with the state-to-state battles that would follow the elimination of Roe v. Wade. I want our political leaders to know that.


        • yankeegospelgirl

          But murder isn’t even a federal issue. If somebody were to murder me today, it would be prosecuted by the local system. And honestly, that system makes sense to me. Would we really want to federalize every single murder in the country? What a mess that would be. It’s much more efficient for each state to deal with its own cases.

          So even granting that abortion is murder, you have to take that into consideration.

          • Cromwell

            First of all, abortion aside there aren’t any states trying to Legalize Murder and if they did under the 14th amendment and Declaration of Independence(those inalienable Rights) the Federal Govt. would have a duty to step in and stop it.

            Secondly, Ron Paul has been lying and getting away on this subject about there only being “3 Federal Laws”. The facts are the Founding Fathers themselves in the Very First Congress passed multiple laws, including laws related to Murdering a Federal Agent being a Federal Crime. The Very First Congress and George Washington passed the Judiciary Act setting up the courts.

      • Gunny Hartman

        John wrote: “But it is currently only in the domain of the federal government, which means it is legal everywhere–including South Dakota.”

        Precisely, the states rights issue is really more than “another” issue, it’s the key to a whole lot of what’s gone wrong with this country.

        John also wrote (above): “Perry is right that all laws outside from these three specific laws are within the domain of the states. To think otherwise is to believe the Federal government is preeminent, when it has only become so through the nationalistic fervor of the nineteenth and twentieth centuries. This is the very movement that all those who favor limited government must reject, as it is the source of the overbearing state that seeks to oppress.”

        Well said, sir. Before we start to “fix” things, I think it would behoove us to reassert the proper manner of fixing things in the process.

  • Jeff Wright

    “If you’ve got states that are able to act independently of the federal government, you’re more likely to have just laws at least somewhere in the nation, rather than unjust laws everywhere.”

    Agreed. And continue to fight for the constitutional amendment too.

  • donsands

    “securing the ‘blessings of liberty”

    So waht did they mean by this John?

    As a USA citizen, I want this governement to secure my liberties, don’t you? Even as a baby I would like my liberties as a citizen protected.

    I just don’t see it. I guess it’s simple truth versus human wisdom, or something.

    Have a great day in our Lord’s liberty and love.

  • John Caneday


    They meant what they said. They meant to create a government of limited powers, yet with the ability to defend against invaders.

    They meant to create a government with specific enumerated powers, with specific rights left uninfringed. They meant to establish a government that would stand over time, that would not fall into despotism.

    To smuggle anti-abortion laws (or anything else, for that matter) simply does violence to the text and the intentions of the founders, and thereby erodes the foundations of law.

  • donsands

    “..the ability to defend against invaders.”

    So if Mexico attacked Texas, and simply wanted Texas but not the whole of the USA, and they killed people in doing so, the FED would have have to bow out?

    I really am trying to understand this to be honest. Perhaps the US Constitution needed a bit more written into it in my way of thinking. Which is okay. For any nation it is a good Constitution, humanly written.

    • John Caneday

      The U.S. Constitution provided a federal framework for foreign relations–specifically war and trade. The two were dealt with as a collective nation, rather than each state individually.

      May I suggest “The Politically Incorrect Guide to the Constitution”?

  • Jonathan

    First off I’m definately pro-life, however, I do think in the absence of the Constitutional Amendment the question of the legality of abortion should have be decided by the voters of each State. I have qualms though about anyone who could claim to believe in limited government to think that the federal government should decide matters of morality. Morality cannot and should not be legislated by the secular powers because, in instances like abortion, simply making something illegal does NOT stop those who truly want to do something from doing so. If some woman wants an abortion it could be illegal in all fifty states with a Constitutional Amendment saying so and she would STILL get an abortion because where there’s a will there’s a way and she would find it. So as I said, in absence of an amendment to the Constitution..the question of abortion is a State’s right (ie: 10th amendment) not a federal issue. Personally I am against the 14th Amendment because it has been abused by the anchor baby issue and it’s sole purpose was served 150 years ago when it granted the newly freed slaves in the South with American citizenship. The 14th Amendment no longer serves any purpose and should be repealed.

Comment here. Please use FIRST and LAST name.