Malcolm Rivera
The topic of abortion is connected to several constitutional amendments in the United States. The Fourteenth Amendment, which guarantees a right to privacy that protects a woman's decision to terminate her pregnancy, has been central to abortion rights. Roe v. Wade, a landmark 1973 Supreme Court case, established that the Fourteenth Amendment's Due Process Clause protects a woman's liberty and privacy to choose abortion. The Fifth Amendment's Due Process Clause has also been invoked in abortion debates, with challenges to federal abortion restrictions citing this amendment. Additionally, the Ninth Amendment has been referenced in discussions on abortion rights, emphasizing that unenumerated rights are still retained by the people. The Hyde Amendment, an annual appropriations provision restricting federal funds for abortions through Medicaid, has been upheld by the Court, impacting abortion access. State-level constitutional amendments regarding abortion have also been proposed and voted on, reflecting ongoing debates and efforts to shape abortion rights and restrictions.
| Characteristics | Values |
|---|---|
| Court decision | In 1973, the Court determined in Roe v. Wade that the U.S. Constitution protects a woman's decision whether or not to terminate her pregnancy |
| Constitutional basis | The right of privacy founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action |
| Overruling | Dobbs v. Jackson Women's Health Org. in 2022 |
| Amendment connected with abortion | The Hyde Amendment, an annual appropriations provision that restricts the use of federal funds to pay for abortions provided through the Medicaid program |
| Constitutional amendment measures | Voters in 16 states have weighed in on constitutional amendments regarding abortion |
| State constitution protection | Measures protecting abortion rights succeeded in 7 states – Arizona, Colorado, Maryland, Missouri, Montana, Nevada, and New York – and failed in 3 – Florida, Nebraska, and South Dakota |
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What You'll Learn
Roe v. Wade
The case centred around a Texas law that prohibited abortions except when necessary to save the mother's life. A three-judge panel unanimously ruled in McCorvey's favour, declaring the Texas law unconstitutional. The court found that the law violated the right to privacy, which is protected by the Ninth Amendment.
The case then went to the Supreme Court, which in 1973, ruled that the decision to continue or end a pregnancy belongs to the individual, not the government. This ruling was based on the Fourteenth Amendment's guarantee of "liberty", which protects individual privacy. The Supreme Court's decision effectively legalised abortion and made it more accessible and safer for many pregnant people across the country.
The ruling in Roe v. Wade was significant as it recognised the right to abortion and guaranteed the right to make decisions during pregnancy, advancing gender equality in various spheres. It also set a precedent for future cases, with the Supreme Court repeatedly reaffirming the protection of abortion as an essential liberty until its decision to overturn Roe v. Wade in 2022.
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Dobbs v. Jackson Women's Health Organisation
In 1973, the US Supreme Court ruled in Roe v. Wade that the US Constitution protects a woman's decision to terminate her pregnancy. This decision was based on the right to privacy, which is founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action.
However, on June 24, 2022, the Supreme Court ruling in Dobbs v. Jackson Women's Health Organisation reversed this decision. The case concerned the constitutionality of a 2018 Mississippi state law, the Gestational Age Act, which banned most abortion operations after the first 15 weeks of pregnancy. Following the passage of this Act, Mississippi's only abortion clinic, Jackson Women's Health Organisation, and one of its doctors, Sacheen Carr-Ellis, sued state officials including Thomas E. Dobbs, a state health officer with the Mississippi State Department of Health, to challenge the Act's constitutionality.
The Supreme Court's decision in Dobbs v. Jackson Women's Health Organisation held that the US Constitution does not confer a right to abortion, overruling Roe v. Wade and a 1992 abortion decision, Planned Parenthood of Southeastern Pennsylvania v. Casey. This ruling has had a significant impact on abortion access and reproductive rights in the United States, with many American women losing a fundamental constitutional protection.
While Dobbs v. Jackson Women's Health Organisation did not directly address the constitutional amendments connected with abortion, previous court cases have considered the Fifth Amendment's Due Process Clause and the First Amendment's Establishment Clause in relation to abortion restrictions and funding. The Hyde Amendment, for example, restricts the use of federal funds to pay for abortions provided through the Medicaid program, and the Court found that this did not violate the Due Process or Equal Protection Clauses of the Fifth Amendment, nor the Establishment Clause of the First Amendment.
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Fourteenth Amendment
The Fourteenth Amendment, passed by Congress in 1866 and ratified in 1868, has been connected with abortion rights in the United States. The amendment states:
> "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The Fourteenth Amendment was originally intended to extend civil and legal rights to Black citizens, granting citizenship to "all persons born or naturalized in the United States" and ensuring rights in states with discriminatory laws.
In 1973, the Supreme Court's Roe v. Wade decision ruled that the Fourteenth Amendment's Due Process Clause provides a fundamental "right to privacy," which protects a pregnant woman's decision to terminate her pregnancy. The Court interpreted the Amendment's guarantee of liberty as including the right to make personal decisions related to family, marriage, and childrearing, as well as the right to control one's body.
However, in 2022, the Supreme Court overturned Roe v. Wade, ruling that there is no constitutional right to abortion under the Fourteenth Amendment. This decision marked the first time the Supreme Court had taken away a fundamental right. The Court's ruling in Dobbs v. Jackson Women's Health Organization increased judicial oversight of abortion-related laws and allowed states more leeway in regulating abortions.
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Fifth Amendment
The Fifth Amendment's Due Process Clause has been connected with abortion rights in the United States. The Due Process Clause protects an individual's liberty and freedom of choice for certain personal decisions.
In Roe v. Wade, the Court determined that the US Constitution protects a woman's decision to terminate her pregnancy, resting on the right to privacy and the Fourteenth Amendment's concept of personal liberty and restrictions on state action. Following Roe, several federal abortion restrictions were challenged as infringing on the analogous right guaranteed by the Fifth Amendment's Due Process Clause.
The Hyde Amendment, an annual appropriations provision that restricts the use of federal funds to pay for abortions provided through the Medicaid program, was upheld by the Court in Harris v. McRae. The Court found that the Hyde Amendment did not violate the Due Process Clause of the Fifth Amendment, as it did not restrict a woman's freedom of choice but rather the funding for abortions.
In Rust v. Sullivan, the Court determined that a woman's right to abortion was not burdened by regulations implementing Title X of the Public Health Service Act. The Court reasoned that there was no constitutional violation as the government has no duty to subsidize an activity simply because it is constitutionally protected.
In a post-Roe era, with states tightening abortion restrictions, there is concern that the Fifth Amendment will not adequately protect the privacy and autonomy necessary for meaningful access to medical care. Prosecutions of self-managed abortions are likely to increase, with patient statements made in hospitals or doctors' offices being used as evidence against them.
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State abortion measures
In 1973, the Court determined in Roe v. Wade that the U.S. Constitution protects a woman's decision to terminate her pregnancy. The constitutional basis for the decision rested on the right to privacy, which is founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action. However, in 2022, the U.S. Supreme Court overturned Roe v. Wade, leaving abortion policies and reproductive rights to be decided by each state.
Following the overturning of Roe v. Wade, abortion laws vary significantly across the United States. Some states prohibit abortion at all stages, with a few exceptions, while others permit it up to a certain point in a woman's pregnancy, and some allow abortion throughout. In states where abortion is legal, certain restrictions may exist, such as parental consent, mandatory waiting periods, or counselling requirements. As of 2022, abortion is illegal in 13 states.
Several states have enacted or are in the process of enacting stricter abortion laws, and some have resumed enforcement of pre-1973 laws. For example, abortion is illegal in Alabama and Arkansas, with exceptions only to preserve the woman's life or physical health. Doctors in Arkansas who perform abortions face up to 10 years in prison and fines of up to $100,000. In contrast, abortion is legal in California up to the point of fetal viability and beyond if necessary to preserve the life or health of the pregnant woman.
Montana is an interesting case, as its Supreme Court ruled in 1999 that abortion was a right implicitly granted by the state constitution. In 2021, the Montana Legislature enacted a 20-week ban, and in 2023, it banned dilation and evacuation, the most common technique used in abortions after 15 weeks. However, these laws were blocked by the courts, and in 2024, Montana voters ratified Initiative 128, which made abortion an explicit constitutional right.
Some states criminalize those who self-manage their abortions outside of a healthcare setting. These laws are modelled after Texas SB 8, which took effect in September 2021 and bans abortion at an early gestational age. These laws are enforced through private rights of action, authorizing members of the public to sue abortion providers and those who help others access abortion care.
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Frequently asked questions
Abortion has been connected with the Fourteenth Amendment, which guarantees a right to privacy that protects a woman's decision to terminate her pregnancy.
The Fourteenth Amendment's concept of personal liberty and restrictions on state action was cited in the Roe v. Wade case, where the Court ruled that the U.S. Constitution protects a woman's decision to terminate her pregnancy.
The Fifth Amendment's Due Process Clause has also been invoked in abortion cases, and the Ninth Amendment has been suggested as a potential source for the right to choose to have an abortion.
