Abortion Laws: Constitutional Rights Or Moral Wrongs?

The topic of abortion laws and their constitutionality is a highly debated subject, with strong opinions on both sides of the argument. The landmark Roe v. Wade case of 1973 saw the US Supreme Court rule that the US Constitution generally protected a woman's right to have an abortion. This ruling sparked an ongoing national debate about whether abortion should be legal, and to what extent, and who should decide its legality.

The right to abortion is not one of the fundamental liberties protected by the US Constitution, and the word abortion is not explicitly written in the Constitution, leaving room for interpretation. The Supreme Court's decision in Roe v. Wade was based on the interpretation of a right to privacy in the Due Process Clause of the Fourteenth Amendment, which some argue is not mentioned in the Constitution at all.

The Supreme Court's decision in Roe v. Wade was controversial and was criticised by some in the legal community, including those who thought that it was a form of judicial activism. The decision was also criticised for being placed within the framework of civil rights rather than broader human rights.

In 2022, the Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization, ending the constitutional right to abortion. This decision was based on the argument that the right to abortion was not deeply rooted in this Nation's history or tradition and was not considered a right when the Due Process Clause was ratified in 1868.

The topic of abortion laws and their constitutionality remains a highly contested issue, with strong arguments on both sides.

The right to privacy

The Supreme Court's interpretation of the right to privacy in Roe v. Wade was that it encompassed a woman's decision to carry a pregnancy to term. While the state could regulate and restrict abortion access, particularly in the later stages of pregnancy, it could not override a woman's right to privacy in this context. This decision was based on the idea that the Bill of Rights, including the First, Third, Fourth, Fifth, and Ninth Amendments, created "zones of privacy" that protected individuals from government interference in certain personal and moral decisions.

The Roe v. Wade decision set a precedent for privacy-related cases over the following decades, including Planned Parenthood v. Casey in 1992, which reaffirmed the right to privacy in family planning matters. The Court held that the "fundamental right of privacy protects citizens against governmental intrusion in such intimate family matters" and that any state law creating an "undue burden" on a pregnant person's right to choose would violate the Due Process Clause.

However, in 2022, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in the case of Dobbs v. Jackson Women's Health Organization. The Court held that the right to privacy is not specifically guaranteed in the Constitution and that unenumerated liberty rights must be "deeply rooted in the Nation's history and tradition", which abortion was not considered to be. This decision has raised concerns about the future of privacy rights in the United States and the potential erosion of other civil rights established by Supreme Court precedents.

The right to life

The US Constitution does not explicitly mention abortion, which has led to differing interpretations of the right to life in relation to abortion rulings. The Supreme Court's Roe v. Wade ruling in 1973 legalised abortion nationwide, arguing that the Constitution implies a "right to privacy" in the Due Process Clause of the 14th Amendment. This decision was reinforced by Casey v. Planned Parenthood. However, in 2022, Roe v. Wade was overruled by Dobbs v. Jackson Women's Health, which argued that the government had overreached in its previous decisions and that the issue of abortion should be returned to the states or Congress to decide.

The pro-life movement advocates for legal and policy changes that restrict or prohibit abortion. They seek to protect the right to life of the unborn by arguing that abortion should be criminalised or heavily regulated. This often includes supporting legislation that defines personhood as beginning at conception, granting legal rights and protections to unborn children. In some countries, such as Equatorial Guinea and Zambia, seeking an abortion or assisting someone in obtaining an abortion can result in life imprisonment.

While the pro-life movement primarily focuses on the right to life of the unborn, it is important to acknowledge that there are varying degrees of belief within this perspective. Some pro-life advocates may support limited exceptions to abortion laws, such as in cases of rape, incest, or when the life of the pregnant person is at risk. Additionally, the pro-life movement often intersects with social and political ideologies that emphasise traditional family structures and gender roles.

The right to liberty

In the landmark Roe v. Wade case of 1973, the Supreme Court recognised abortion as a liberty right under the Fourteenth Amendment. The Court's majority opinion stated that abortion is an indirect liberty, implying a "right to privacy" in the Due Process Clause of the Fourteenth Amendment. This right to privacy was further informed by several other amendments, including the First, Third, Fourth, Fifth, and Ninth Amendments. The Court's decision in Roe v. Wade effectively abolished state-level abortion restrictions and sparked a national debate on a woman's right to choose.

However, the interpretation of the right to liberty and its application to abortion have been challenged. In the 2022 Dobbs v. Jackson Women's Health Organisation case, the Supreme Court overturned Roe v. Wade, ruling that there is no constitutional right to abortion. The Court's majority opinion, written by Justice Alito, stated that "the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision". Justice Alito further argued that the right to privacy, which Roe's defenders relied on, was not explicitly mentioned in the Constitution and could not encompass abortion.

The debate around the right to liberty and abortion is complex and deeply divisive. While some argue for a broad interpretation of liberty that includes abortion, others, like Justice Alito, maintain that abortion is not implicitly protected by the Constitution. This disagreement highlights the ongoing tension between different interpretations of constitutional rights and the role of the Supreme Court in shaping the law of the land.

The right to equality

The right to abortion has been essential to advancing women's equality in the US. For almost five decades, this right has helped generations of women pursue personal, educational, and employment opportunities and life goals, and has helped to counter the long history of discrimination that has limited women's legal, social, and economic progress.

The right to abortion protects each individual's ability to decide and control their own reproductive future. It is particularly important for all women, girls, and people who can become pregnant. Everyone has the right to control their own fertility and exercise reproductive autonomy.

The right to abortion has had a measurable and significant impact on gender equality. Research confirms that abortion care has had a measurable and significant impact on advancements in women's lives. For example, for young women, "access to abortion increased the probability they finished college by nearly 20 percentage points and the probability that they entered a professional occupation by nearly 40 percentage points." These effects "tended to be greater among Black women."

The right to abortion has empowered women to participate more fully in society and to attain higher levels of education, employment, and economic security. It has enabled athletes to fully and equally participate in athletics, with access to abortion providing "collateral benefits that result from athletic participation, including greater educational success, career advancement, enhanced self-esteem, and improved health."

Abortion is protected by the 14th Amendment's guarantees of liberty and equality. Overturning Roe v. Wade would "uniquely harm" people of color, young people, those with low incomes, LGBTQ+ individuals, those in abusive relationships, and people with disabilities.

The right to health

Abortion is a medical procedure that ends a pregnancy. It is basic healthcare needed by millions of women, girls, and people who can get pregnant. It is estimated that one in four pregnancies ends in an abortion every year.

In places where abortion is legal and accessible, and there is less stigma, people can get abortions safely and without risk. However, in places where abortion is stigmatized, criminalized, or restricted, people are forced to resort to unsafe abortions. It is estimated that 25 million unsafe abortions take place every year, mostly in developing countries, and can lead to fatal consequences such as maternal deaths and disabilities.

Unsafe abortions are the third leading cause of preventable maternal deaths worldwide. They are also the cause of five million largely preventable disabilities, according to the World Health Organization.

Access to safe abortion is, therefore, a matter of public health and is a vital part of the right to health.

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