Eleanor Finch
Abortion is not explicitly protected by the US Constitution, but some argue that it is a right that people have, much like the rights to travel, vote, and marry. The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the US Constitution. In July 2022, the Center for Reproductive Rights published a report outlining 10 states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the US Constitution.
| Characteristics | Values |
|---|---|
| Abortion as a fundamental right | No, it is not explicitly stated in the Constitution |
| Abortion as a constitutional right | No, according to Justice Alito |
| Abortion restrictions violating equal protection guarantees | No, according to the U.S. Supreme Court |
| Abortion protections at the state level | Yes, in 10 states according to a 2022 report by the Center for Reproductive Rights |
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What You'll Learn
Abortion as a fundamental right
Abortion is not a fundamental right protected by the US Constitution. The US Supreme Court has not held that abortion restrictions violate the federal Constitution's equal protection guarantees. However, some state courts and constitutions have adopted more stringent legal standards, invalidating laws that infringe on decision-making about pregnancy.
The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the US Constitution. Human rights principles and international and comparative law recognise that abortion must be legal and accessible.
For decades, the Center for Reproductive Rights has brought cases in state courts to build strong abortion protections at the state level independent of federal law. In a report published in July 2022, the Center outlined 10 states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the US Constitution.
Abortion remains a right that people have despite not being explicitly stated in the Constitution, much like the rights to travel, vote, and marry. Abortion bans remove women's control of their bodies and force them to endure the dangerous work of pregnancy.
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State constitutions and abortion rights
Abortion is not a constitutional right, but it is a right that the people have, much like the rights to travel, vote, and marry. The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the U.S. Constitution. Human rights principles and international and comparative law recognise that abortion must be legal and accessible.
Some state courts and constitutions have adopted more stringent legal standards, invalidating laws that infringe on decision-making about pregnancy. Over the last three decades, state courts have built a foundation of novel jurisprudence that recognises strong personal privacy and autonomy rights, equality principles, and the deeply rooted nature of abortion protections in history and text.
The U.S. Supreme Court has not held that abortion restrictions violate the federal Constitution’s equal protection guarantees—which protect the right of people to be treated equally under the law. In one context—a challenge to Medicaid funding for abortion brought in Harris v. McRae—the Court rejected an equal protection claim and upheld policies that discriminate against pregnant people with low incomes. In contrast, high courts in several states have struck down laws that treat people seeking abortion differently from those who choose to continue pregnancies; and in one state, treated an abortion restriction as a form of sex discrimination, which federal courts have failed to do.
For decades, the Center for Reproductive Rights has brought cases in state courts to build strong abortion protections at the state level independent of federal law. In a report published in July 2022, “State Constitutions and Abortion Rights: Building protections for reproductive autonomy,” the Center outlined 10 states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the U.S. Constitution or had struck down restrictions that were upheld by the U.S. Supreme Court.
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Abortion and equal protection
Abortion is not a constitutional right. The majority opinions in Roe and Casey acknowledge that the Constitution doesn't protect abortion as a "fundamental right". However, the right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the U.S. Constitution.
The U.S. Supreme Court has not held that abortion restrictions violate the federal Constitution's equal protection guarantees, which protect the right of people to be treated equally under the law. In one context, the Court rejected an equal protection claim and upheld policies that discriminate against pregnant people with low incomes.
In contrast, high courts in several states have struck down laws that treat people seeking abortions differently from those who choose to continue pregnancies. In one state, an abortion restriction was treated as a form of sex discrimination, which federal courts have failed to do.
For decades, the Center for Reproductive Rights has brought cases in state courts to build strong abortion protections at the state level independent of federal law. In a report published in July 2022, the Center outlined 10 states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the U.S. Constitution.
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Abortion as a form of sex discrimination
Abortion is not a constitutional right. The U.S. Supreme Court has not held that abortion restrictions violate the federal Constitution's equal protection guarantees, which protect the right of people to be treated equally under the law. However, some state courts and constitutions have adopted more stringent legal standards, invalidating laws that infringe on decision-making about pregnancy.
The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the U.S. Constitution. Abortion must be legal and accessible according to human rights principles and international and comparative law.
The Center for Reproductive Rights has brought cases in state courts to build strong abortion protections at the state level independent of federal law. In a report published in July 2022, the Center outlined 10 states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the U.S. Constitution.
In one state, an abortion restriction was treated as a form of sex discrimination, which federal courts have failed to do. Abortion bans remove women's control of their bodies and force them to endure the dangerous work of pregnancy.
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Abortion and the 13th Amendment
The right to an abortion is not explicitly protected by the US Constitution. However, some argue that abortion is protected by the 13th Amendment, which abolished slavery and involuntary servitude. The 13th Amendment states that "neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States". While this amendment was ratified to abolish slavery, it has been used in legal arguments against human trafficking, child labour, and mandatory military service. Similarly, abortion bans can be seen as a form of involuntary servitude, as they remove women's control over their bodies and force them to endure the dangerous work of pregnancy.
The Center for Reproductive Rights has brought cases in state courts to build strong abortion protections at the state level, independent of federal law. In a 2022 report, the Center outlined 10 states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the US Constitution. In contrast, the US Supreme Court has not held that abortion restrictions violate the federal Constitution's equal protection guarantees. For example, in Harris v. McRae, the Court rejected an equal protection claim and upheld policies that discriminate against pregnant people with low incomes.
Despite the lack of explicit protection in the Constitution, abortion remains a right that people have, much like the rights to travel, vote, and marry. The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the US Constitution. Human rights principles and international and comparative law recognise that abortion must be legal and accessible. State courts have built a foundation of jurisprudence that recognises strong personal privacy and autonomy rights, equality principles, and the deeply rooted nature of abortion protections in history and text.
However, Justice Alito has argued that abortion is not a constitutional right. He cites the majority opinions in Roe and Casey, which acknowledge that the Constitution does not protect abortion as a "fundamental right". Alito believes that the permissibility of abortion should be resolved through democratic processes, with citizens trying to persuade one another and then voting.
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Frequently asked questions
No, abortion is not a constitutional right. The U.S. Supreme Court has not held that abortion restrictions violate the federal Constitution's equal protection guarantees.
Yes, high courts in several states have struck down laws that treat people seeking abortions differently from those who choose to continue pregnancies. In one state, an abortion restriction was treated as a form of sex discrimination. A report published in July 2022 outlined 10 states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the U.S. Constitution.
The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the U.S. Constitution. Human rights principles and international and comparative law recognise that abortion must be legal and accessible. Abortion bans remove women's control of their bodies and force them to endure the dangerous work of pregnancy.
