Malcolm Rivera
The topic of abortion is not explicitly mentioned in the US Constitution, and different interpretations of the Constitution have been used in abortion rulings. In Roe v. Wade, the Supreme Court ruled that the Constitution protected the right to have an abortion prior to fetal viability, basing this on the right to privacy. However, in 2022, Roe v. Wade was overturned, with the majority opinion stating that abortion was not mentioned in the Constitution and was not part of any constitutional right to privacy.
| Characteristics | Values |
|---|---|
| Abortion mentioned in the constitution | No |
| Right to abortion | Not a constitutional right |
| Right to life | Constitutional right |
| Right to privacy | Not a constitutional right |
| Supreme Court decision | Roe v. Wade |
| Supreme Court decision year | 1973 |
| Supreme Court decision overruled | Dobbs v. Jackson Women's Health Organization |
| Supreme Court decision overruled year | 2022 |
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What You'll Learn
Abortion in the US Constitution
The U.S. Constitution does not explicitly mention abortion, and the topic has been the subject of ongoing debate in the United States. The Fourteenth Amendment to the Constitution provides a
The Roe v. Wade decision sparked debate about the role of moral and religious views in politics and the methods used by the Supreme Court in constitutional adjudication. The decision was criticised by many in the legal community, including some who thought it was a legislative decision rather than a judicial one. The ruling was also criticised for its
The Supreme Court's ruling in Roe v. Wade was overturned in 2022 by the case Dobbs v. Jackson Women's Health Org., which ruled that there is no constitutional right to abortion. This decision was based on the interpretation that the Constitution's intent is to protect the safety of men and women both in and out of the womb, returning to the country's "equality-granting, fundamental, life-affirming roots".
While the U.S. Constitution does not include a textual right to privacy, several state courts have relied on rights to privacy in their state constitutions to provide strong protections for abortion. These state courts have interpreted their constitutional history more expansively than federal jurists, who have employed a narrow analysis to reject rights such as abortion.
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Roe v. Wade
The Roe v. Wade case of 1973 is a landmark US Supreme Court decision that ruled abortion a constitutional right. The case involved a Texas statute that prohibited abortion unless it was necessary to save the pregnant woman's life. The Supreme Court, in a decision written by Justice Blackmun, recognized a privacy interest in abortions, applying the right to privacy established in Griswold v. Connecticut (1965).
The case reached the Supreme Court when both sides appealed in 1970. It bypassed the Court of Appeals as it concerned the granting or denial of a civil injunction decided by a three-judge panel. The case was heard under the name Roe v. Wade, instead of Wade v. Roe, as the original suit was filed on behalf of a woman, Jane Roe, against Henry Wade, a district attorney who would continue to prosecute people for performing abortions.
The Supreme Court's ruling in Roe v. Wade decriminalized abortion nationwide. It protected the right to access abortion legally and allowed patients to access the care they needed without fear. The ruling was based on the Due Process Clause of the Fourteenth Amendment, which states that no state shall "deprive any person of life, liberty, or property, without due process of law". The Court interpreted this to imply a right to privacy, which included the right to abortion.
However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. The Court divided pregnancy into three trimesters, ruling that women had the right to abort pre-viability without undue interference from the state. This decision sparked public opposition and academic criticism, with some arguing that the Court overstepped its role and did not provide a complete justification for its actions.
On June 24, 2022, the Supreme Court overturned Roe v. Wade in the case of Dobbs v. Jackson Women's Health Organization, ending the federal constitutional right to abortion. This decision has allowed states to ban or severely restrict abortion access, with 18 states having done so as of 2022. The impact of this ruling has disproportionately affected marginalized communities, where systemic racism has long blocked access to opportunity and healthcare.
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State constitutions and abortion
The US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization overturned the federal constitutional right to abortion, leaving the legality of abortion up to individual states. While some states have amended their constitutions to declare that they do not protect abortion rights or allow public funding for abortions, others have approved laws to protect abortion rights independently of the Roe v. Wade decision.
State constitutions and courts have become increasingly important in protecting abortion rights and access, particularly in highly restrictive parts of the country. 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 developed a novel jurisprudence that recognizes strong personal privacy and autonomy rights, equality principles, and the historical and textual roots of abortion protections.
As of 2024, 17 states and the District of Columbia have laws that protect the right to abortion, with 3 states including these protections in their state constitutions. 12 states explicitly permit abortion prior to viability or when necessary to protect the life or health of the pregnant person, and 11 states, along with the District of Columbia, have protections in place for abortion providers. Additionally, 4 states have passed constitutional amendments explicitly stating that their constitution does not secure or protect abortion rights or allow the use of public funds for abortions.
In the 2024 elections, 10 states voted on abortion measures, with 7 states—Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York—successfully affirming the protection of abortion rights in their state constitutions. Meanwhile, measures seeking to protect abortion rights failed in 3 states—Florida, Nebraska, and South Dakota—and a measure prohibiting abortions after the first trimester passed in Nebraska.
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The right to privacy
In Roe v. Wade, the Supreme Court held that the 14th Amendment's Due Process Clause protects an individual's right to privacy, encompassing a woman's decision to abort a pregnancy. The Court's majority opinion stated that the right to privacy was broad enough to include a woman's choice to terminate her pregnancy, deriving it from the First, Third, Fourth, Fifth, and Ninth Amendments. The Court's interpretation of the right to privacy as coexisting with the right to life set a precedent for subsequent cases and influenced state laws regarding abortion.
However, the right to privacy in the context of abortion has been contentious. In the Dobbs v. Jackson Women's Health Organization case, the Supreme Court overturned Roe v. Wade, holding that abortion is "fundamentally different" from what is protected by the right to privacy. The Court's majority opinion in Dobbs v. Jackson rejected the notion that abortion is a protected liberty under the 14th Amendment, stating that it only protects rights deeply rooted in the nation's history and implicit in the concept of ordered liberty. This shift in interpretation has raised concerns about the potential impact on other Supreme Court decisions based on similar concepts of liberty and equal protection.
The absence of explicit mention of abortion or privacy in the Constitution has led to varying interpretations in different abortion rulings. While the right to privacy has been used to argue for a woman's choice in abortion, it is also important to consider the government's interest in protecting both women's health and prenatal life. The right to privacy in abortion continues to be a complex and evolving issue, with ongoing debates about the balance between individual rights and state interests.
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Abortion and equal protection
Abortion is not one of the fundamental liberties protected by the US Constitution. However, in 1973, the Court determined in Roe v. Wade that the US Constitution protects a woman's decision on whether to terminate her pregnancy. The constitutional basis for the decision was that the right to privacy, founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action, encompasses a woman's decision to carry a pregnancy to term.
Following Roe v. Wade, several federal abortion restrictions were challenged as infringing on the analogous right guaranteed by the Fifth Amendment's Due Process Clause. In Gonzales v. Carhart, the Court considered whether the federal law was overbroad, prohibiting both the standard dilation and evacuation (D&E) abortion method and the intact D&E method, described by some as "partial-birth" abortion. The Court determined that the law did not impose an undue burden on a woman's ability to obtain an abortion because it prohibited only the less frequently performed intact D&E abortion method.
In Casey, a plurality of the Court adopted an "undue burden" standard for examining abortion regulations, maintaining that this standard better recognized the need to reconcile the government's interest in potential life with a woman's right to decide whether to terminate her pregnancy. The plurality indicated that an undue burden exists if the purpose or effect of an abortion regulation is "to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."
Equality arguments for abortion rights focus on "a woman's autonomy to determine her life's course and thus to enjoy equal citizenship stature." These arguments observe that abortion restrictions deprive women of control over the timing of motherhood and exacerbate inequalities in educational, economic, and political life engendered by childbearing and childrearing. They ask whether, in protecting unborn life, the state has taken steps to ameliorate the effects of compelled motherhood on women or whether the state has proceeded with indifference to the impact of its actions on women.
In the four decades since Roe v. Wade, the US Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. The Court and individual justices have begun to employ equality arguments in analyzing the constitutionality of abortion restrictions, with a growing number of justices viewing the Equal Protection Clause as an independent source of authority for abortion rights.
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Frequently asked questions
No, the word "abortion" is not explicitly mentioned in the US Constitution.
The US Constitution does not include a textual right to privacy, which is the right to be free from government intrusion into personal life and decisions. In Roe v. Wade (1973), the US Supreme Court ruled that the Constitution protects a woman's decision to terminate her pregnancy, based on the right to privacy founded in the Fourteenth Amendment. However, this decision was overturned in 2022, and the Supreme Court ruled that there is no constitutional right to abortion.
Following the overturning of Roe v. Wade, state constitutions and courts have become more important in protecting abortion rights. Some state courts have focused on how autonomy, or the right to control one's own body, protects personal rights, including abortion. These states have interpreted their constitutional history more expansively, recognizing strong personal privacy and autonomy rights.
