Omar Bennett
The topic of abortion and whether it is a part of the constitution has been a highly debated issue in the United States. While the Constitution does not explicitly mention abortion, the Supreme Court's Roe v. Wade ruling in 1973 recognized abortion as a liberty right under the Fourteenth Amendment, concluding that a woman's right to privacy includes the decision to carry a pregnancy to term. However, in 2022, Roe v. Wade was overturned in Dobbs v. Jackson Women's Health Organization, with the Court asserting that abortion is not a constitutional right. This decision has led to a landscape of varying abortion rights across different states, with Republican-controlled legislatures in 24 states passing or working on total or near-total abortion bans.
| Characteristics | Values |
|---|---|
| Abortion mentioned in the Constitution | No |
| Constitutional basis for Roe v. Wade ruling | Right to privacy |
| Constitutional right to abortion | No |
| Constitutional right to privacy | Yes |
| Constitutional right to liberty | Yes |
| Constitutional right to equality | Yes |
| Constitutional right to life | Yes |
| Constitutional right to security | Yes |
| Constitutional right to property | Yes |
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What You'll Learn
Roe v. Wade
The three judges unanimously ruled in McCorvey's favor and declared the Texas law, which prohibited abortions except when necessary to save the mother's life, unconstitutional. The court found that it violated the right to privacy found in the Ninth Amendment. However, the Court also declined to grant an injunction against enforcing the law, and ruled against the married couple on the basis that they lacked standing.
The case reached the Supreme Court in 1970 when both sides appealed. In 1973, the U.S. Supreme Court's ruling in Roe v. Wade recognized that the decision whether to continue or end a pregnancy belongs to the individual, not the government. The Court held that the specific guarantee of "liberty" in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability. The Roe Court ruled that states may not categorically proscribe abortions by making their performance a crime.
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Dobbs v. Jackson Women's Health Organization
The case of Dobbs v. Jackson Women's Health Organization addressed whether the US Constitution protects the right to an abortion. The Supreme Court reviewed the constitutionality of Mississippi's Gestational Age Act, a law banning most abortions after 15 weeks of pregnancy, with exceptions for medical emergencies and fetal abnormalities.
The case was brought about when Mississippi's only abortion clinic, Jackson Women's Health Organization, and one of its doctors, Sacheen Carr-Ellis, sued state officials, including Thomas E. Dobbs, the state health officer. Lower courts had initially ruled in favor of the clinic, placing an injunction on Mississippi from enforcing the Act. However, in a divided opinion, the Supreme Court upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court concluded that the Constitution does not protect the right to an abortion, and the decision returned the issue of abortion regulation to the elected branches.
The Court's decision in Dobbs v. Jackson Women's Health Organization was a landmark ruling that unsettled nearly five decades of precedent. It sparked widespread debate and had significant implications for abortion rights and access in the United States. The ruling allowed states to regulate or prohibit abortion, leading to concerns about the impact on women's rights, health, and autonomy. The decision also had international repercussions, with criticism from public health activists, the World Health Organization, and the United Nations High Commissioner for Human Rights.
The Dobbs case highlighted the differing interpretations of the Constitution regarding abortion, with the Court's decision influenced by the justices' personal beliefs and values. The Court's precedents about bodily autonomy, sexual and familial relations, and procreation are all interconnected and have a significant impact on people's lives, particularly women's lives and their right to self-determination. The decision in Dobbs v. Jackson Women's Health Organization underscored the ongoing debate and legal challenges surrounding abortion in the United States.
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The right to privacy
In Roe v. Wade (1973), the US Supreme Court ruled that the US Constitution protects a woman's decision to terminate her pregnancy under the Fourteenth Amendment. The Court held that states may not categorically prohibit abortions by making their performance a crime and that the right to privacy includes only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty." This set a precedent for abortion rights in the US, with the Court stating that the right to privacy is broad enough to include a woman's decision to carry a pregnancy to term.
However, it's important to note that the right to privacy is not explicitly mentioned in the Constitution either. In 2022, Justice Alito wrote in the Court's majority opinion that Roe "was remarkably loose in its treatment of the constitutional text" by claiming that the abortion right, which is not mentioned in the Constitution, is part of the right to privacy, which is also not explicitly stated. This interpretation of the Constitution has been a subject of debate, with different rulings and interpretations depending on the composition of the Court.
Despite the lack of explicit mention of abortion or the right to privacy in the Constitution, several Amendments have been interpreted to support a woman's right to abortion. These include the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. For example, the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," which can be interpreted to include a woman's right to make personal decisions about her body without religious interference.
In conclusion, while the right to privacy is not explicitly mentioned in the US Constitution, it has been interpreted by the Supreme Court to include a woman's right to terminate her pregnancy. This interpretation has been a subject of debate and has changed over time, with different Courts offering varying rulings. However, the right to privacy in the context of abortion has been tied to several Amendments and continues to be a pivotal point in discussions surrounding abortion rights in the US.
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State constitutions and abortion rights
The US Constitution does not explicitly mention abortion, and different interpretations of the Constitution have led to varying abortion rulings. The Supreme Court's Roe v. Wade decision in 1973 ruled that states may not categorically proscribe abortions, concluding that the right to privacy includes a woman's decision to carry a pregnancy to term. This decision was based on the Due Process Clause of the Fourteenth Amendment, which protects "life, liberty, and property" without defining "liberty".
The Roe v. Wade ruling was reinforced by Casey v. Planned Parenthood and overruled by Dobbs v. Jackson Women's Health Organization, which held that there is no constitutional right to abortion. This decision has shifted the focus to state constitutions and courts, which have become crucial in protecting abortion rights. State courts and constitutions can offer stronger legal grounds for protecting abortion rights and can shield access to abortion even in highly restrictive parts of the country.
Several states have taken steps to protect abortion rights through their constitutions. In 2024, voters in seven states—Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York—approved ballot measures to expand or protect abortion access. Montana's constitution enshrined abortion access, and Arizona's near-total abortion ban was repealed. However, Republican lawmakers in Arizona and other states have introduced bills to restrict abortion and make it more difficult for proposed constitutional amendments to qualify for the ballot.
On the other hand, some states have sought to restrict abortion rights. In Kentucky, a state with a near-total abortion ban, voters rejected an initiative to amend the state constitution to explicitly deny a right to abortion in 2023. Republican lawmakers in the state passed a bill narrowing medical exceptions to the existing abortion ban, which was vetoed by the governor but overridden by the legislature. Missouri is also working on a ballot measure to reverse the protection of abortion rights until fetal viability, and Montana has attempted to criminalize travelling for abortions.
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Abortion as a liberty right
Abortion is not explicitly mentioned in the US Constitution. However, the Supreme Court has ruled that the decision to terminate a pregnancy falls under the right to privacy, which is considered a liberty right.
In the landmark 1973 case Roe v. Wade, the Supreme Court ruled that the US Constitution protects a woman's decision to terminate her pregnancy. The Court found that the right to privacy, which is not explicitly mentioned in the Constitution, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. This ruling was based on the conclusion that the right to privacy includes personal rights deemed "fundamental" or "implicit in the concept of ordered liberty". The Court also stated that this right to privacy bears some relation to activities concerning marriage, procreation, contraception, family relationships, child-rearing, and education.
The Roe v. Wade ruling was reinforced by the 1992 case Planned Parenthood v. Casey, which affirmed that the Constitution protects a woman's right to choose to have an abortion without excessive government restriction. However, in 2022, the Supreme Court overturned Roe v. Wade in the case Dobbs v. Jackson Women's Health Organization, ruling that there is no constitutional right to abortion. This decision has been criticised for threatening broader protections for liberty and privacy rights.
The American Civil Liberties Union (ACLU) and constitutional law scholars have argued that the right to abortion is grounded in the Constitution's liberty guarantee in the Due Process Clause of the Fourteenth Amendment. They assert that the right to abortion is interconnected with other liberty rights recognised by the Court, such as the right to same-sex marriage, to engage in private sexual conduct, and to bodily integrity. By overturning Roe v. Wade, the Court risks undermining these other liberty rights and allowing state interference in personal decisions.
The debate over abortion rights in the US centres on the interpretation of the Constitution and the balance between a woman's liberty rights and the state's interest in protecting fetal life. While some argue that abortion is a private matter that should be left to the individual, others believe that the state has a compelling interest in protecting the life of the unborn child. This disagreement has led to a ongoing legal and political battle over abortion access and restrictions.
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Frequently asked questions
No, the right to abortion is not a freedom protected by the US Constitution. The word "abortion" is not mentioned in the Constitution, and different interpretations of the Constitution have been used in different abortion rulings.
Cornell University defines constitutional rights as "protections and liberties guaranteed to the people by the U.S. Constitution." Many of these rights are outlined in the Bill of Rights, such as the right to free speech in the First Amendment.
The right to privacy is not mentioned in the Constitution but has been used to justify abortion rights. The right to privacy is considered broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
Roe v. Wade was a Supreme Court case that legalized abortion nationwide in 1973, striking down many state abortion laws. The case was brought by Norma McCorvey, who wanted an abortion but lived in Texas, where abortion was illegal unless necessary to save the mother's life.
Some arguments against the Roe v. Wade decision include that the Constitution is silent on the issue and that solutions should be found through state legislatures rather than the Supreme Court. Another argument is that in the absence of a consensus on when meaningful life begins, it is best to avoid the risk of doing harm.
