Isabella Carter
The word abortion is not explicitly mentioned in the US Constitution, but the Supreme Court has ruled on several occasions that the Constitution protects a person's right to make their own private medical decisions, including the decision to have an abortion. The debate surrounding abortion in the US centres on the interpretation of the Constitution and the balance between individual rights and the government's interests. While some states have protected abortion access in their constitutions, others have explicitly stated that there is no right to abortion. The Supreme Court's recent overturning of Roe v. Wade, a landmark case that legalised abortion nationwide, has further polarised the abortion debate in the country.
| Characteristics | Values |
|---|---|
| Abortion mentioned in US Constitution | No |
| Abortion laws by state | Alaska, Arizona, California, Colorado, Illinois, Kansas, Maryland, Michigan, Minnesota, Missouri, Montana, New York, North Dakota, Ohio, Vermont, and Wyoming have a right to abortion in their state constitutions. Alabama, Arkansas, Louisiana, Tennessee, and West Virginia have no right to abortion in their state constitutions. |
| Federal laws | Partial-Birth Abortion Ban Act of 2003, Freedom of Access to Clinic Entrances Act of 1994, and Comstock Act of 1873 |
| Supreme Court rulings | Roe v. Wade (1973), Planned Parenthood v. Casey, Whole Woman's Health v. Hellerstedt, Gonzales v. Carhart (2007), Ex parte Jackson (1878), Dobbs v. Jackson Women's Health Organization (2022) |
| Supreme Court stance | The Supreme Court has struck a balance between an individual's constitutional rights and the government's interests in a potential life and a pregnant person's health. |
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What You'll Learn
Roe v. Wade
The word "abortion" is not mentioned in the US Constitution. However, the topic of abortion has been the subject of much legal debate and has been addressed in various court cases, including Roe v. Wade.
The case was heard by a three-judge panel, including district court judges Sarah T. Hughes and William McLaughlin Taylor Jr., and appellate judge Irving Loeb Goldberg. The judges unanimously ruled in favour of McCorvey, declaring the Texas law unconstitutional as it violated the right to privacy protected by the Ninth Amendment. However, they declined to grant an injunction against enforcing the law, which meant that McCorvey was still unable to obtain an abortion.
The case eventually reached the US Supreme Court in 1973, where it was decided by a 7-2 vote to invalidate the Texas law and recognize a woman's right to decide whether to continue a pregnancy under the constitutional protection of privacy afforded by the Fourteenth Amendment. Justice Blackmun, writing for the majority, described the right of personal privacy as fundamental, encompassing a woman's decision to terminate her pregnancy.
The Roe v. Wade decision had a significant impact on abortion laws in the United States, making abortion legal, more accessible, and safer for many pregnant individuals. It also advanced gender equality in various spheres by guaranteeing the right to make decisions during pregnancy. However, the decision was not without controversy, and the Supreme Court has continued to grapple with abortion rights in subsequent cases, with some states continuing to restrict abortion access.
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State laws on abortion
While the word "abortion" is not explicitly mentioned in the US Constitution, the right to abortion is grounded in the general sense of liberty and privacy protected by the Constitution. The Due Process Clause of the Fourteenth Amendment states that no state shall "deprive any person of life, liberty, or property, without due process of law."
As of 2025, the state constitutions of Alaska, Arizona, California, Colorado, Illinois, Kansas, Maryland, Michigan, Minnesota, Missouri, Montana, New York, North Dakota, Ohio, Vermont, and Wyoming explicitly guarantee the right to abortion or have had this right interpreted by their state supreme court. States like Oregon and Massachusetts also protect abortion under state law.
On the other hand, the state constitutions of Alabama, Arkansas, Louisiana, Tennessee, and West Virginia explicitly contain no right to abortion. Nebraska's state constitution prohibits abortion after the first trimester.
The Partial-Birth Abortion Ban Act of 2003, the Freedom of Access to Clinic Entrances Act of 1994, and the Comstock Act of 1873 are examples of federal laws that provide criminal provisions related to abortion. The Supreme Court has played a significant role in interpreting and upholding these laws, such as in Gonzales v. Carhart (2007) and Ex parte Jackson (1878).
State laws and ballot measures regarding abortion vary widely. For example, in 2023, Ohio voters approved the addition of the right to abortion to their state constitution. Arizona's state Supreme Court ruled in 2024 that a 1902 law disallowing nearly any abortion, except in medical emergencies, should take precedence over a 15-week ban passed in 2022. Some states have also attempted to block the use of telehealth for abortion services and require at least one trip to a clinic, creating barriers to access.
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The Partial-Birth Abortion Ban Act of 2003
The Act was passed by a Republican-led Congress in 2003, with support from some Democrats, and was signed into law on November 5, 2003. It is one of the few federal laws that provide substantive criminal provisions regarding abortion. The law specifically prohibits the prosecution of a woman upon whom a partial-birth abortion is performed, protecting her from conspiracy charges or punishment as an accessory.
The constitutionality of the Partial-Birth Abortion Ban Act was challenged in the Supreme Court case Gonzales v. Carhart in 2007. The Court upheld the Act, finding that it pertained only to a specific abortion procedure and was sufficiently distinct from a previous Nebraska law banning partial-birth abortion that had been struck down in 2000 (Stenberg v. Carhart). The Court's decision in Gonzales v. Carhart affirmed that states could place some restrictions on specific abortion procedures.
The Partial-Birth Abortion Ban Act has been a controversial topic, with polls in 2003 showing varying levels of support and opposition. The Act has also led to changes in medical practices, with some abortion providers inducing fetal demise before performing late-term abortions to comply with the law. The debate around abortion in the United States often revolves around induced abortions, with legal battles frequently occurring at the state level and in the Supreme Court.
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The role of the Supreme Court
In 1992, the Court heard Planned Parenthood v. Casey, which abandoned Roe's strict trimester framework but affirmed the central holding of Roe, that women have a right to abortion before viability. The Court in Casey adopted the lower, undue burden standard for evaluating state abortion restrictions, emphasising the right to abortion as grounded in liberty and privacy protected under the Constitution, deriving from the Due Process Clause of the Fourteenth Amendment.
The Supreme Court has also played a role in interpreting and upholding federal laws that provide criminal provisions protecting or penalising abortion. For example, in Gonzales v. Carhart (2007), the Court upheld the Partial-Birth Abortion Ban Act of 2003 against constitutional attack under the Fifth Amendment. Similarly, in Ex parte Jackson (1878), the Court upheld the Comstock Act of 1873, which primarily covers the use of the mail or postal system in relation to abortion.
The Supreme Court has also been involved in state-level abortion debates. For instance, in Arizona, the state Supreme Court initially ruled that a 15-week abortion ban passed by the state in 2022 should be replaced by a 1902 law based on an 1864 pre-ratification law, which disallowed nearly any abortion except in medical emergencies. However, the state government later repealed the 1902 law to allow the 2022 law to take effect.
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The Fourteenth Amendment
In Roe v. Wade, the Supreme Court ruled that the right to privacy implied in the Fourteenth Amendment protected abortion as a fundamental right. Justice Harry Blackmun, writing for the majority opinion, stated that a woman's right to abortion was implicit in the right to privacy protected under the Fourteenth Amendment. The Court held that statutes regulating abortion must be subject to "strict scrutiny", applying the traditional Supreme Court test for impositions upon fundamental constitutional rights.
However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. After fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve life and health. For 49 years following the decision, states, healthcare providers, and citizens fought over the limits the government could place on abortion access, particularly during the second and third trimesters.
In 1992, the Supreme Court case Planned Parenthood v. Casey overturned Roe's strict trimester framework but maintained its central holding that women have a right to choose to have an abortion before viability. The Court adopted the lower, undue burden standard for evaluating state abortion restrictions, emphasising the right to abortion as grounded in the general sense of liberty and privacy protected under the Fourteenth Amendment.
In 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, ruling that there is no constitutional right to abortion. This marked the first time in history that the Supreme Court had taken away a fundamental right. Justice Clarence Thomas, who was in the Dobbs majority, wrote that Roe was "grievously wrong" because its core holding finds "no support in the text of the Fourteenth Amendment".
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Frequently asked questions
No, the word abortion is not mentioned in the US Constitution.
The US Constitution does not explicitly protect the right to abortion. However, some sources argue that the Fourteenth Amendment, which enshrines rights not explicitly mentioned in the Constitution, provides a basis for protecting abortion rights as part of an individual's liberty and privacy.
As of June 2022, the federal constitutional right to abortion in the US has been overturned by the Supreme Court. Now, individual states have the power to regulate abortion, with some states banning or severely restricting it.
Those in favour of abortion rights argue that the Fourteenth Amendment protects unenumerated fundamental rights, including bodily integrity, reproductive liberty, and the right to establish a family. Opponents of abortion rights argue that the Constitution does not mention abortion and that protecting unwritten rights falls outside the judicial function.
