Isabella Carter
The topic of amending the constitution to ban abortions is a highly debated issue in the United States. In 1973, the Supreme Court ruled in Roe v. Wade that the U.S. Constitution protects a woman's decision to terminate her pregnancy, recognizing the right to privacy encompassing a woman's choice to carry a pregnancy to term. However, in 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, stating that there was no federal constitutional right to abortion. This decision led to a wave of state-level abortion rights amendments, with voters in several states passing measures to protect or restrict abortion access. While some states have successfully protected abortion rights through constitutional amendments, others continue to face legal challenges and practical hurdles that impact abortion access. The process of amending constitutions to ban abortions has sparked ongoing legal and political debates, with advocates emphasizing the importance of safeguarding reproductive autonomy and state court independence.
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What You'll Learn
The Human Life Amendment
Since 1973, a number of Human Life Amendments have been proposed in Congress, with 20 total days of hearings before the Senate Judiciary Committee in 1974, 1975, and 1981. Between 1973 and 2003, the National Committee for a Human Life Amendment reported a total of 330 proposals with varying texts, most of which died in committee. The only version of the Human Life Amendment to reach a formal floor vote was the Hatch-Eagleton Amendment, which received 49 supporting votes in the Senate on June 28, 1983, falling short of the 67 votes required for passage.
The text of the Hatch-Eagleton Amendment, also known as the Human Life Federalism Amendment, included the following provisions:
> "Section 1. Nothing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion. With respect to the right to life, the word 'person,' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.
> Section 2. No abortion shall be performed by any person except under and in conformance with law permitting an abortion to be performed only in an emergency when a reasonable medical certainty exists that the continuation of pregnancy will cause the death of the mother and requiring that person to make every reasonable effort, in keeping with good medical practice, to preserve the life of her unborn offspring.
> Section 3. The Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions."
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Roe v. Wade
The case centred around a Texas law that prohibited abortions except when necessary to save the mother's life. The lawsuit argued that this law violated the right to privacy found in the Ninth Amendment. The three-judge panel hearing the case unanimously ruled in favour of McCorvey, declaring the Texas law unconstitutional. However, they did not grant an injunction against enforcing the law, which meant that McCorvey could not get an abortion.
The case then reached the Supreme Court in 1973, where it was decided that the right to liberty in the Constitution, encompassing personal privacy, includes the right to decide whether to continue a pregnancy. This decision effectively made abortion legal, more accessible, and safer for many pregnant people across the country. The Court also ruled that states may not categorically proscribe abortions by making their performance a crime.
The Roe v. Wade decision was overturned by the Supreme Court in 2022, marking the first time the Court had taken away a fundamental right. This decision has had a significant impact on abortion access and reproductive rights in the United States.
Amendments Secure Privacy Rights in the Constitution
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Dobbs v. Jackson Women's Health Org
The case of Dobbs v. Jackson Women's Health Org. (2022) saw the US Supreme Court overturn Roe v. Wade, the 1973 decision that ruled prohibitions against abortion were unconstitutional. The Roe Court ruled that states could not categorically proscribe abortions by making their performance a crime. The decision in Dobbs v. Jackson Women's Health Org. dramatically increased judicial oversight of abortion-related legislation, striking down laws in numerous states, the District of Columbia, and the territories. The Court's decision was based on a lengthy historical review of medical and legal views on abortion, finding that modern prohibitions lacked a historical foundation.
The decision in Dobbs v. Jackson Women's Health Org. has also led to a renewed focus on state court independence and its role in safeguarding reproductive autonomy. While passing a constitutional amendment can be a step towards protecting abortion rights, it does not automatically remove abortion bans or restrictions. Litigation is often necessary to block the enforcement of abortion bans, even in states with constitutional amendments protecting abortion rights.
The Dobbs case specifically concerned a Mississippi law that banned abortions after 15 weeks of pregnancy, with exceptions only for medical emergencies or severe fetal abnormality. The Supreme Court's decision upheld the Mississippi law, which had been blocked by lower courts, and effectively overturned Roe v. Wade, giving states the power to restrict or ban abortions. This has resulted in a wave of new abortion restrictions and bans across the country, with states now having the final say on abortion laws within their jurisdictions.
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State abortion laws
The Roe v. Wade decision in 1973 had established that the US Constitution protects a woman's decision to terminate her pregnancy, and most states repealed abortion bans following this ruling. However, some states never repealed their pre-Roe abortion bans, and with the recent overturning of Roe v. Wade, these states have tried to revive these restrictions. The term "trigger laws" refers to laws passed after Roe v. Wade that were intended to ban abortion if the Supreme Court ever overturned its decision. Since the recent ruling in Dobbs v. Jackson, states with trigger laws have moved to enforce these abortion bans.
The Dobbs v. Jackson ruling has also impacted state constitutional amendments protecting abortion rights. For example, in Arizona, a state constitutional amendment was passed in 2024, establishing a fundamental right to pre-viability abortion. However, the state also has a 15-week abortion ban, which abortion providers are now challenging in court. Similarly, in Missouri, voters passed an amendment that appears to overturn the state's strict abortion ban, and Planned Parenthood has announced it will not resume providing abortions until the court rules in their favour. In Ohio, voters passed an abortion rights amendment, but the state attorney general is appealing a lower court decision to strike down a six-week abortion ban.
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The Supreme Court
For nearly five decades, the Supreme Court upheld the core principle of Roe v. Wade, affirming that the Constitution safeguards an individual's right to make private medical decisions, including the decision to have an abortion before fetal viability. This changed with the appointment of three new Supreme Court justices with records hostile to reproductive rights. As a result, the Court's decision in Dobbs v. Jackson Women's Health Organization in 2022 allowed states to regulate or ban abortion at their discretion.
The impact of the Supreme Court's ruling extends beyond abortion access. It has shifted the landscape of reproductive rights to state courts and legislatures, leaving a long list of unanswered questions. These include the ability of states to ban women from travelling to obtain abortions, the enforcement of abortion drug importation and use, and the handling of "trigger laws" designed to come into effect upon the overturning of Roe v. Wade. The ruling has also sparked political wrangling over state abortion rights, with voters in several states passing state abortion rights amendments, only to face ongoing legal challenges.
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Frequently asked questions
Roe v. Wade was a 1973 Supreme Court decision that ruled prohibitions against abortion were unconstitutional and protected a woman's decision to terminate her pregnancy.
Yes, Roe v. Wade was overturned in 2022 by Dobbs v. Jackson Women's Health Organization.
The federal constitutional right to abortion in the US ended, and 18 states banned or severely restricted abortion in the first few months after the ruling.
Abortion rights vary by state, with some states passing amendments to protect abortion rights and others implementing bans or restrictions. Litigation is often necessary to block enforcement of abortion bans.
Yes, it is possible to amend the US Constitution to ban abortions. Multiple proposals, known as Human Life Amendments, have been introduced in Congress since 1973, seeking to overturn Roe v. Wade and ban abortions at the federal level. However, as of August 2022, none of these proposals have succeeded.
