Simone Lawson
The topic of abortion is not explicitly mentioned in the US Constitution, and as such, the legality of abortion has been left up to individual states to decide. This has resulted in a landscape of differing abortion rights across the country, with Republican-controlled legislatures in 24 states passing or working towards total or near-total abortion bans. The lack of a clear constitutional stance on abortion has led to varying interpretations and court rulings, with the Supreme Court's Roe v. Wade decision in 1973 declaring abortion a nationally protected right, which was later overruled in 2022. The debate surrounding abortion centres on the conflicting rights to life and abortion, with pro-life and pro-choice advocates disagreeing on whether a woman's rights take precedence over a baby's rights, or vice versa.
| Characteristics | Values |
|---|---|
| Abortion is not mentioned in the Constitution | The word "abortion" is not explicitly written in the Constitution |
| Different interpretations of the Constitution | Different interpretations of the Constitution have led to different abortion rulings |
| Bias in abortion-related Court decisions | The absence of the word "abortion" in the Constitution can lead to bias in abortion-related Court decisions |
| Federal government's role | The federal government does not have the authority to make a decision on the legality of abortion, leaving it to the states |
| Founding Father's views | Abortions occurred legally and were not uncommon when the Constitution was written |
| Religious views | The question of when life begins is a spiritual and religious one, and governments cannot show preference for certain religious beliefs |
| Women's rights | Abortion bans remove women's control of their bodies and force them to endure the dangers of pregnancy |
| Constitutional rights | The right to abortion is not a constitutional right, but several Amendments should be interpreted to protect a woman's right to one |
| Supreme Court rulings | Roe v. Wade declared abortion a nationally protected right, while Dobbs v. Jackson Women's Health Org. overturned this ruling |
| Stare decisis | The Supreme Court typically follows precedent, but can overturn previous rulings if there is a "special justification" |
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What You'll Learn
- The right to abortion is a constitutional right
- The right to life is a constitutional right
- The US Constitution protects a woman's decision to terminate her pregnancy
- Founding Father Benjamin Franklin wrote an abortion recipe in a textbook
- The Supreme Court can overrule precedent if there is a 'special justification'
The right to abortion is a constitutional right
The 14th Amendment states that " [n]o 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." In Roe v. Wade, the Supreme Court interpreted this amendment to mean that the Constitution protects a woman's decision to terminate her pregnancy, declaring abortion a nationally protected right. This decision was later reaffirmed in Thornburgh v. American College of Obstetricians and Gynecologists, where the Court observed that the constitutional principles that guided its decisions in Roe and Doe v. Bolton provide a compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy.
The right to abortion can also be inferred from the 5th Amendment, which guarantees an individual's "freedom of choice for certain personal decisions." In Planned Parenthood of Se. Pa. v. Casey, the Court adopted an "undue burden" standard for examining abortion regulations, recognizing the need to reconcile the government's interest in potential life with a woman's right to decide whether to terminate her pregnancy. This standard was later applied in Whole Woman's Health v. Hellerstedt, where the Court emphasized that reviewing courts must consider the burdens a law imposes on abortion access together with the benefits those laws confer.
Additionally, abortion advocates argue that abortion bans violate the right of women to be secure in their persons and bodies against government control. They also point to the 8th Amendment, which was intended to protect against cruel and unusual punishment, arguing that forcing women to undergo a gestational period and the dangers of pregnancy can be considered cruel and unusual.
While there are differing interpretations of the Constitution regarding abortion, the Supreme Court has played a crucial role in shaping abortion rights through its rulings, such as Roe v. Wade, which legalized abortion nationwide, and subsequent cases that reinforced or overruled it.
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The right to life is a constitutional right
The right to life is often cited in abortion debates, with the argument that abortion infringes on an unborn child's right to life. However, the question of when life begins is a spiritual and religious one, and the United States Constitution prohibits the government from favouring a particular religious viewpoint. The Constitution does not explicitly mention abortion, and several Amendments have been interpreted to protect a woman's right to abortion.
The Eighth Amendment, for example, protects against cruel and unusual punishment, which could be argued to include the cruel and unusual punishment of a forced gestational period. The Thirteenth Amendment, ratified to abolish slavery, has been used in legal arguments against human trafficking, child labour, and mandatory military service. Abortion bans could be seen as similarly removing women's control over their bodies and forcing them to endure the dangerous work of pregnancy.
The Supreme Court case Roe v. Wade in 1973 ruled that abortion was a nationally protected right, stating that abortion is an indirect liberty. The Court's decision was based on the conclusion that the right to privacy includes a woman's decision to carry a pregnancy to term. This ruling was later overruled by Dobbs v. Jackson Women's Health in 2022, which found that abortion bans were not protected by the Constitution.
The debate over abortion centres on the interpretation of the Constitution and the right to life, with both pro-life and pro-choice sides agreeing that the Constitution should have the final say. The Supreme Court's role in interpreting the Constitution and defining the limits of state authority in regulating abortion remains pivotal in shaping abortion rights in the United States.
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The US Constitution protects a woman's decision to terminate her pregnancy
The US Constitution does not explicitly mention abortion, and different interpretations of the Constitution have been used in various abortion rulings. However, several Amendments can be interpreted as protecting a woman's right to terminate her pregnancy.
The Fourteenth Amendment states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside... [No] State [shall] 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." In Roe v. Wade, the Supreme Court ruled that abortion was an indirect liberty and a nationally protected right. This was reaffirmed in Thornburgh v. American College of Obstetricians and Gynecologists, where the Court observed that the constitutional principles that guided its decisions in Roe and Doe v. Bolton still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy. In 2020, the Court invalidated a Louisiana law that required physicians who performed abortions to have admitting privileges at a hospital within thirty miles, concluding that the law imposed an undue burden on a woman's ability to obtain an abortion.
The Eighth Amendment was intended to protect convicted criminals from cruel and unusual punishment. It seems odd, then, that state governments would be so quick to exert the cruel and unusual punishment of a forced gestational period on millions of women who have committed no crime. In addition, the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Since the nation's founding, people of various faiths have held different views on abortion, on when life begins, and on what constitutes personhood. The question of when life begins remains a spiritual and religious one; therefore, federal and state governments cannot show a preference for certain religious groups and their beliefs over others.
The US legal system typically follows precedent, and the Supreme Court applies the doctrine of stare decisis by following the rules of its prior decisions unless there is a 'special justification' or 'strong grounds' to overrule precedent. When the Supreme Court decided to overturn Roe v. Wade, the Justices had a heavy burden to prove beyond doubt that abortion isn't a constitutional right.
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Founding Father Benjamin Franklin wrote an abortion recipe in a textbook
The United States Constitution does not explicitly mention abortion. However, several of its Amendments have been interpreted to protect a woman's right to abortion. The Eighth Amendment, for instance, was intended to protect convicted criminals from cruel and unusual punishment. Similarly, the right to privacy and liberty, as mentioned in the Constitution, has been used to argue for a woman's right to abortion.
The absence of the word "abortion" in the Constitution has led to varying interpretations and court rulings. The Supreme Court's decision to overturn Roe v. Wade, which had established abortion as a nationally protected right, underscores the impact of judicial bias and the lack of a clear constitutional mandate.
The topic of abortion has been a subject of debate in the United States, with varying religious and spiritual views. Founding Father Benjamin Franklin, in 1748, published a manual titled "The American Instructor or Young Man's Best Companion," which included a recipe for abortion. Franklin adapted the manual from a British source, making changes to suit the American context. The inclusion of the abortion recipe in a widely circulated textbook reflects the social acceptance of abortion in colonial America.
Franklin's textbook provided advice on various topics, including arithmetic, writing, and spelling. The abortion recipe involved herbal remedies, such as pennyroyal, which are now known to be ineffective and unsafe compared to modern scientific methods. Franklin's inclusion of the recipe may have been influenced by his desire to boost textbook sales and his views on abortion, which he expressed through manufactured debates in newspapers.
The discovery of Franklin's abortion recipe in a textbook highlights the historical context of abortion in the United States. It underscores how abortion rights and societal norms have evolved over time, with modern interpretations and legal rulings on abortion diverging from those of the past.
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The Supreme Court can overrule precedent if there is a 'special justification'
The United States Constitution does not explicitly mention abortion, and the right to abortion is not considered a constitutional freedom. The decision in Roe v. Wade, which legalised abortion nationwide, was based on the claim that the right to privacy is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy". This decision sparked a national debate on a woman's right to choose, with some Americans supporting abortion under certain circumstances, while others strongly oppose it altogether.
The Supreme Court's treatment of precedent raises questions about maintaining stability in the law. While the Court generally adheres to the doctrine of stare decisis, or respect for prior rulings, it has shown a greater willingness to overrule its decisions on constitutional questions. The Court has stated that there must be a "special justification" or "strong grounds" beyond mere disagreement to overturn precedent. This approach allows the Court to balance respect for precedent with its views on the merits of the prior decision and pragmatic considerations.
The Supreme Court's decision to overturn Roe v. Wade and Casey v. Planned Parenthood was based on the argument that the original ruling was ""loose in its treatment of the constitutional text" and that the right to privacy, from which the right to abortion was derived, was not explicitly mentioned in the Constitution. By overturning these precedents, the Court asserted that abortion is not a constitutional right, despite pressure from abortion advocates who considered Roe v. Wade immutable law.
The overruling of precedent can be controversial, as it raises questions about the Court's legitimacy and the potential impact on public perception. The Supreme Court must consider various factors and weigh the implications of its decisions, especially in controversial cases involving abortion rights, environmental protection, and the separation of church and state. The Court's rulings can have far-reaching consequences, and the interpretation of the Constitution in abortion-related decisions may be influenced by the biases of individual justices.
In conclusion, while the Supreme Court generally adheres to stare decisis, it can overrule precedent if there is a special justification or strong grounds beyond mere disagreement. The Court's decision to overturn Roe v. Wade and related cases illustrates the impact of overruling precedent, highlighting the ongoing debate surrounding abortion rights and the interpretation of the Constitution.
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Frequently asked questions
The US Constitution does not explicitly mention abortion, which has led to different interpretations of abortion rulings.
The Constitution does not mention abortion as a right, so the federal government has no say in its legality. Instead, the issue is left to the states.
Abortion is considered a constitutional right. In Roe v. Wade, the Supreme Court declared abortion a nationally protected right, stating that abortion is an indirect liberty.
The Constitution protects a woman's decision to terminate her pregnancy. The Fourteenth Amendment states that no state shall deprive any person of life, liberty, or property without due process of law.
