Abortion Law: Unconstitutional And Unjust

The US Supreme Court's Roe v. Wade decision in 1973 legalised abortion, establishing a constitutional right to privacy encompassing a woman's decision to abort. However, the ruling has been criticised for exceeding the Court's constitutional authority and misrepresenting the history of abortion practices and attitudes. Critics argue that the Constitution is silent on abortion, and that the states should be free to regulate or permit it as they see fit. The debate revolves around the soundness of Roe v. Wade as a matter of constitutional interpretation, with some arguing that abortion deprives the unborn of life without due process of law, making it unconstitutional.

The Supreme Court's ruling in Roe v. Wade decriminalised abortion

The landmark ruling in Roe v. Wade by the U.S. Supreme Court in 1973 decriminalised abortion and recognised the right to abortion as a fundamental liberty right. The ruling held that the decision to continue or end a pregnancy belonged to the individual, not the government.

The Supreme Court's ruling in Roe v. Wade was based on the interpretation of the "liberty" guaranteed in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy. The Court ruled that this right to liberty and privacy includes the right to decide whether to continue a pregnancy, placing reproductive decision-making alongside other fundamental rights such as freedom of speech and religion.

The Court's interpretation of the Fourteenth Amendment was that it protected a woman's right to privacy and personal choice in matters of abortion. This right was deemed to be "broad enough to encompass a woman's decision whether or not to terminate her pregnancy". The Court also recognised that outlawing abortions would infringe on a pregnant woman's right to privacy and liberty, as having an unwanted child could force a woman into a life of distress, cause psychological harm, and negatively impact her physical and mental health.

The Roe v. Wade ruling had a significant impact on abortion laws in the United States, striking down many existing abortion laws and shaping the ongoing abortion debate in the country. The ruling also had broader implications for the interpretation of the Constitution and the role of the Supreme Court in constitutional adjudication.

However, it is important to note that the Roe v. Wade ruling was not without its critics and controversies. Some legal scholars and justices have argued that the ruling exceeded the Court's constitutional authority and misrepresented the history of abortion practices and attitudes. The ruling was also criticised for its arbitrary trimester framework, which allowed states to regulate abortion based on the stage of pregnancy.

Despite these controversies, the Roe v. Wade ruling stood as a landmark decision for nearly 50 years, until it was overturned by the Supreme Court in 2022 in the case of Dobbs v. Jackson Women's Health Organization. This recent ruling has once again ignited debates and discussions around abortion laws and reproductive rights in the United States.

Abortion infringes on a constitutionally protected right

However, critics argue that the Court's decision in Roe v. Wade exceeded its constitutional authority. They assert that the Court's role is to determine if a law infringes on constitutionally protected rights, not to substitute its policy preferences for those of the elected representatives. The criticism highlights that the power to make laws rests with Congress and state legislatures, and the Court's ruling in Roe v. Wade infringed upon this legislative authority.

The criticism also extends to the Court's interpretation of the Fourteenth Amendment. Critics contend that the amendment was intended to secure already existing rights for all persons, particularly freed slaves and their descendants, rather than create new rights. They argue that the Court failed to examine the intent of the drafters regarding privacy interests in abortion.

Additionally, critics claim that the Court's reasoning in Roe v. Wade lacks a logical connection to privacy rights. They point out that abortion does not fit neatly into the recognized privacy spheres of marriage, childrearing, procreation, and contraceptive use. Instead, abortion is seen as child destruction, negating the right to procreate.

The Court's ruling in Roe v. Wade, which established abortion as a constitutional right, has been a highly controversial topic. Critics argue that the Court overstepped its authority, misinterpreted the Fourteenth Amendment, and failed to provide a convincing constitutional basis for its decision. These criticisms highlight the ongoing debate surrounding abortion and its legal status.

The Supreme Court has eliminated the federal constitutional right to abortion

On June 24, 2022, the U.S. Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that the federal constitutional right to abortion was eliminated. The ruling overturned Roe v. Wade, a 1973 decision that had legalised abortion in the United States and recognised the right to liberty and privacy in the Constitution, protecting a woman's decision to abort her child.

Roe v. Wade was a landmark decision that struck down many abortion laws and caused an ongoing abortion debate in the United States. The Supreme Court's ruling in Roe v. Wade decriminalised abortion nationwide, protecting the right to access abortion legally across the country. For nearly 50 years, safe and legal abortion was a recognised federal constitutional right.

However, despite this ruling, many states passed laws that made accessing abortions extremely difficult. In 1976, the Hyde Amendment, a national policy viewed as racist, became law. For years, anti-abortion rights politicians worked to appoint judges and justices hostile to abortion rights, manipulating nomination rules to dominate the Supreme Court with justices who oppose abortion rights.

The Supreme Court's decision to overturn Roe v. Wade has resulted in a third of women now living in states where abortion is not accessible, with 18 states banning or severely restricting abortion in the months following the ruling. The abortion bans have disproportionately impacted Black, Latino, Indigenous, and other communities of colour, where systemic racism has long blocked access to opportunities and healthcare.

The elimination of the federal constitutional right to abortion by the Supreme Court has far-reaching implications, with people forced to travel great distances to access abortion care or carry unwanted pregnancies to term, violating their human rights. The Court's ruling in Dobbs v. Jackson Women's Health Organization has abandoned nearly 50 years of precedent, marking the first time the Supreme Court has taken away a fundamental right.

The Fourteenth Amendment does not support a nationwide ban on abortion

The Court's interpretation of the Fourteenth Amendment in Roe v. Wade was that the right to privacy is broad enough to encompass a woman's decision to terminate her pregnancy. This right to privacy was deemed fundamental, requiring courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States. The Court held that women's abortion rights must be balanced against other government interests, such as protecting maternal health and prenatal life.

The Court's ruling in Roe v. Wade was based on the conclusion that the right of privacy embraces a woman's decision to carry a pregnancy to term. The Court determined that this right is implicit in the concept of ordered liberty and bears some extension to activities related to marriage, procreation, contraception, family relationships, child-rearing, and education. The Court's decision in Roe v. Wade dramatically increased judicial oversight of legislation, striking down aspects of abortion-related laws in numerous states, the District of Columbia, and the territories.

The Fourteenth Amendment was not intended to create any new rights but to secure the rights and liberties already guaranteed by the Constitution to all persons, notably including freed slaves and their descendants. The Amendment states that no state shall "deprive any person of life, liberty, or property, without due process of law". This was interpreted in Roe v. Wade to include a woman's right to privacy in her decision to terminate her pregnancy.

The Supreme Court's ruling in Roe v. Wade has been controversial, with some critics arguing that the Court reached the correct result but went about it the wrong way, and others calling the decision a form of judicial activism. Despite this criticism, the Supreme Court reaffirmed Roe's central holding in its 1992 decision, Planned Parenthood v. Casey. However, in 2022, the Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization, ending the constitutional right to abortion.

Abortion is not akin to child-rearing

Abortion is a medical procedure that ends a pregnancy. It is a basic healthcare intervention needed by millions of women, girls, and people who can get pregnant. On the other hand, child-rearing refers to the act of raising and caring for a child after birth. These are distinct processes, and one does not equate to the other.

Abortion is often sought when a pregnancy is unplanned or unwanted. People may choose to terminate a pregnancy due to various social, economic, and health circumstances. For example, they may wish to postpone or stop childbearing, citing concerns about their education, employment, financial situation, relationship problems, or their perception of being too young to have a child. These reasons highlight the complexities and nuances behind the decision to have an abortion, which cannot be simply reduced to child-rearing.

The right to abortion is about bodily autonomy and reproductive freedom. It is a recognition that individuals should have control over their own bodies and fertility. Criminalising or restricting access to abortion does not prevent abortions from happening; instead, it pushes people towards unsafe methods, putting their health and lives at risk. This was evident in the United States before Roe v. Wade, when abortion was illegal but still commonly practised, often through dangerous means.

By contrast, child-rearing involves the active care and nurturing of a child after birth. It encompasses the decisions and choices made in raising a child, such as those related to education, healthcare, and overall well-being. Child-rearing is a choice that individuals make, or have the option to make, after a child is born.

Abortion, on the other hand, is a decision made during pregnancy, and it does not negate the concept of child-rearing. In fact, for many, the decision to have an abortion is motivated by a desire to create better conditions for potential future children, ensuring they can provide them with the necessary care and resources.

Furthermore, the argument that abortion is akin to child-rearing fails to consider the impact of forced pregnancy and birth on individuals' lives. A pregnancy can have significant physical, mental, and social consequences, and restricting access to abortion can violate a range of human rights, including the right to life, health, privacy, and freedom from discrimination and cruel or degrading treatment.

In conclusion, abortion and child-rearing are distinct and separate issues. Abortion is a healthcare procedure that allows individuals to make choices about their bodies and fertility, while child-rearing involves the care and nurturing of a child after birth. Conflating the two oversimplifies the complexities surrounding abortion and ignores the fundamental rights at stake.

Frequently asked questions