Simone Lawson
The topic of abortion and its legality has been a subject of debate for decades. In the United States, the Supreme Court's landmark decision in Roe v. Wade in 1973 established a constitutional right to privacy, protecting a woman's decision to terminate her pregnancy. This ruling was based on the Fourteenth Amendment's concept of personal liberty and restrictions on state action. However, the debate continues, with ongoing discussions regarding which amendment of the Constitution guarantees abortion and the extent to which abortion access should be protected.
| Characteristics | Values |
|---|---|
| Constitutional basis | Right to privacy |
| Amendment | Fourteenth Amendment |
| Clause | Liberty Clause |
| Ruling | Dobbs v. Jackson Women's Health Org. |
| Year of ruling | 2022 |
| Previous ruling | Roe v. Wade |
| Year of previous ruling | 1973 |
| Overturned by | Dobbs v. Jackson Women's Health Org. |
| Overturned year | 2022 |
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What You'll Learn
Roe v. Wade
In 1969, Norma McCorvey (under the legal pseudonym "Jane Roe") became pregnant with her third child and wanted an abortion. However, she lived in Texas, where abortion was only legal when necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee, filed a lawsuit in 1970 on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. The case was consolidated with another and heard by a three-judge panel, who unanimously ruled in McCorvey's favour, declaring the Texas law unconstitutional and finding that it violated the right to privacy found in the Ninth Amendment. However, the court did not grant an injunction against enforcing the law, and McCorvey was unable to obtain an abortion. Both sides appealed to the Supreme Court, which issued a 7-2 decision in McCorvey's favour in 1973, holding that the Due Process Clause of the Fourteenth Amendment provides a fundamental "right to privacy", which protects a pregnant woman's decision to abort a pregnancy.
The Supreme Court's decision in Roe v. Wade recognised that the right to liberty in the Constitution, which protects personal privacy, includes the right to decide whether to continue a pregnancy. This decision was consistent with earlier Supreme Court rulings recognising a right to privacy that protects intimate and personal decisions from governmental interference. By guaranteeing the right to make decisions in pregnancy, Roe was critical to advancing gender equality in educational, economic, and political spheres.
At the time Roe was decided, nearly all states banned abortion, except in certain limited circumstances. Criminal abortion bans contributed to the deaths of many people who were unable to access safe, legal abortions. Under Roe, these bans were unconstitutional, making abortion legal, more accessible, and safer for many pregnant people throughout the country. However, even Roe could not make access a reality for everyone, and low-income people, people of colour, young people, and others continued to face barriers to accessing abortion.
In June 2022, the Supreme Court overturned Roe v. Wade, ruling that there is no constitutional right to abortion. This decision marked the first time in history that the Supreme Court had taken away a fundamental right. The ruling in Dobbs v. Jackson Women's Health Organization abandoned nearly 50 years of precedent and has led to more than a dozen states banning abortion outright, forcing people to travel long distances to access abortion care or to carry pregnancies against their will, a grave violation of their human rights.
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Fourteenth Amendment
The Fourteenth Amendment of the U.S. Constitution guarantees a woman's right to privacy and personal liberty, which includes her decision to terminate a pregnancy. This amendment ensures that individuals have the freedom to make personal decisions about family, marriage, and childrearing without state interference. The Due Process Clause of the Fourteenth Amendment protects citizens' rights to life, liberty, and property, and it played a crucial role in the landmark case of Roe v. Wade in 1973.
In Roe v. Wade, the Supreme Court ruled that the Fourteenth Amendment's concept of personal liberty and restrictions on state action encompass a woman's decision to carry a pregnancy to term. This ruling established a constitutional right to privacy and reproductive autonomy, which was later reaffirmed in cases like Thornburgh v. American College of Obstetricians and Gynecologists in 1986. The Court recognized that the Constitution's protection of liberty includes the right to make personal choices related to family planning and controlling one's body.
The Fourteenth Amendment's Liberty Clause, as interpreted by the Supreme Court, protects an individual's right to decide whether and when to have children. This interpretation aligns with international human rights law, which requires governments to respect and protect the right to make personal decisions, including those regarding reproductive capacity. The Court's ruling in Roe v. Wade was based on the understanding that the right to privacy is inherent in the Fourteenth Amendment and extends to a woman's decision-making about her pregnancy.
While the Fourteenth Amendment provides a strong foundation for reproductive rights, it is not the only pillar supporting these freedoms. Multiple legal rights intersect with reproductive autonomy, addressing issues of sex, race, and economic discrimination. For example, reproductive justice advocates argue for abortion to be considered an affirmative right, ensuring equal access regardless of race, socioeconomic status, or geographical location. This broader interpretation aims to hold all new obstetricians accountable for supporting abortion rights and preventing conscience clauses from being used to refuse abortion procedures.
The Fourteenth Amendment's role in guaranteeing abortion rights has been challenged and reaffirmed over the years. In June 2022, the Supreme Court overturned Roe v. Wade, ruling that there is no constitutional right to abortion. This decision marked the first time the Court had revoked a fundamental right. However, the Fourteenth Amendment's guarantees of life, liberty, and equal protection continue to provide a critical framework for advocating for and strengthening reproductive rights in the United States.
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Right to privacy
The right to privacy in the US Constitution has been interpreted by the Supreme Court as protecting a woman's right to choose whether to terminate her pregnancy. This right to privacy was cited in the landmark 1973 case Roe v. Wade, where the Court ruled that the Due Process Clause of the Fourteenth Amendment provides a fundamental "right to privacy", encompassing a woman's decision to abort a pregnancy.
The Court's decision in Roe v. Wade was based on the interpretation that the Fourteenth Amendment's guarantee of liberty includes a right to privacy and the ability to make personal decisions about one's body. This right to privacy was also supported by earlier decisions such as Meyer v. Nebraska and Pierce v. Society of Sisters, which dealt with parental control over childrearing, and Griswold v. Connecticut, which involved the use of contraception.
The Supreme Court's ruling in Roe v. Wade established a precedent that recognised abortion as a component of personal liberty and reproductive autonomy. This interpretation of the Fourteenth Amendment's Liberty Clause affirmed that individuals have the right to make decisions about whether and when to have children. The Court's decision also acknowledged that the right to abortion is not absolute and must consider the government's interest in protecting women's health and prenatal life.
While Roe v. Wade established a significant precedent, it is important to note that the Supreme Court's interpretation of constitutional rights and their impact on abortion laws has evolved over time. In the 1989 decision of Webster v. Reproductive Health Services, the Court ruled against an affirmative right to non-therapeutic abortions, stating that states are not required to fund them. Additionally, in Dobbs v. Jackson Women's Health Organization, the Court overturned Roe v. Wade, concluding that the Constitution does not confer a right to abortion.
The debate surrounding abortion and the right to privacy continues, with advocates for reproductive justice arguing for a broader interpretation of abortion rights. They seek to ensure equal access to abortion services, regardless of a person's race, economic status, or location. The discussion around the right to privacy and abortion remains complex, with ongoing legal and societal implications.
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Right to reproductive autonomy
The right to reproductive autonomy is a fundamental human right that is deeply rooted in the US Constitution and international human rights law. Reproductive autonomy refers to the power to make and act on decisions about reproduction, which is central to how individuals shape their lives. This includes decisions about whether and when to have children, the number and spacing of children, and whether or not to carry a pregnancy to term.
The 14th Amendment of the US Constitution guarantees reproductive autonomy through its multiple and interdependent clauses on life, liberty, and equal protection. The Supreme Court has interpreted the Liberty Clause of the 14th Amendment to protect individual decisions about whether and when to have a child, in line with its textual protection for liberty, which includes the right to make personal decisions related to family, marriage, and childrearing, as well as the right to control one's body. The Due Process Clause of the 14th Amendment also provides a "right to privacy", which protects a pregnant woman's decision to abort a pregnancy.
However, the US has a history of reproductive oppression, with laws and policies that perpetuated stereotypes about women's roles in society and enforced their second-class status. These laws limited women's rights and autonomy, including their ability to own property, vote, pursue an education, work, and participate fully in civic life. They also authorized coercive means to control the childbearing of women deemed "unfit" by lawmakers, particularly women of colour, immigrant women, and disabled women.
Despite this history, the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, holding that there is no constitutional right to abortion. This marked the first time the Supreme Court had taken away a recognised fundamental right. The ruling goes against the constitutional importance of decisions about childbearing and undermines decades of jurisprudence about the meaning of liberty.
To strengthen reproductive autonomy, a positive rights approach is needed alongside the defence of negative rights. This includes addressing the myriad factors that can constrain reproductive decisions, such as access to financial assistance for assisted reproductive technologies and addressing persistent inequalities. By recognising the broader implications of reproductive autonomy, we can work towards a richer and fuller understanding of the benefits it can bring to individuals, families, and societies.
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Right to liberty
The right to liberty is a fundamental concept in the abortion debate. This right is enshrined in the Fourteenth Amendment of the US Constitution, which includes the right to privacy and the right to control one's body. The Supreme Court's decision in Roe v. Wade in 1973 recognised a woman's right to abortion under the Due Process Clause of the Fourteenth Amendment, which protects a woman's privacy and liberty in making decisions about childbearing. This decision was based on the understanding that the Constitution's protection of liberty encompasses personal decisions related to family, marriage, and childrearing.
The Roe v. Wade decision had a significant impact on abortion laws across the United States, with many states enacting restrictions on abortion access. The American Civil Liberties Union (ACLU) has been working to defend and preserve reproductive freedom, which they view as a civil liberty protection guaranteed by the Constitution. They argue that politicians should stop interfering in women's healthcare and that reproductive freedom is a popular sentiment across the country and party lines.
However, in 2022, the Supreme Court overturned Roe v. Wade, ruling that there is no constitutional right to abortion. This decision has sparked debates about the role of the Supreme Court in constitutional interpretation and the future of reproductive rights. Despite this setback, reproductive justice advocates continue to fight for abortion rights, arguing that abortion should be considered an affirmative right guaranteed by the government. They equate the denial of abortion rights to compulsory motherhood, which they believe violates the Thirteenth Amendment's prohibition of "involuntary servitude".
The right to liberty in the context of abortion extends beyond the US as well. International human rights law and treaty bodies recognise the right to make personal decisions, including those regarding reproductive capacity. This global perspective underscores the importance of protecting and fulfilling the right to reproductive autonomy, which includes access to abortion.
In conclusion, the right to liberty is a crucial aspect of the abortion debate, with the Fourteenth Amendment's Liberty Clause playing a central role in shaping legal interpretations and public sentiments. While the Supreme Court's recent decision to overturn Roe v. Wade has shifted the legal landscape, advocates for reproductive justice remain committed to safeguarding abortion rights as a fundamental aspect of personal liberty.
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Frequently asked questions
The Fourteenth Amendment guarantees abortion through its multiple and interdependent clauses of life, liberty, and equal protection.
In 1973, the Roe v. Wade case determined that the U.S. Constitution protects a woman's decision to terminate her pregnancy.
The outcome of the Roe v. Wade case was that the Supreme Court ruled in favor of Norma McCorvey (under the legal pseudonym "Jane Roe"), holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental right to privacy, which protects a pregnant woman's decision to abort.
