Abortion Rights: Federal Law Vs State Power

The topic of whether a national abortion-rights law is unconstitutional has been a subject of debate in the United States for decades. The U.S. Supreme Court's decision in Roe v. Wade in 1973 established abortion as a fundamental right protected by the Fourteenth Amendment, recognising a woman's liberty right to choose whether to continue a pregnancy. However, in 2022, the Supreme Court overturned Roe v. Wade, eliminating the constitutional right to abortion and allowing states to implement their own abortion laws. This shift has sparked discussions about the constitutionality of a potential national abortion-rights law. While some argue that Congress lacks the constitutional authority to establish such a law, others explore possible legal avenues for federal intervention to protect abortion rights.

The Tenth Amendment and abortion

The Tenth Amendment to the US Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This amendment is relevant to the issue of abortion rights because it underscores the principle of federalism, which divides power between the federal government and the states.

The Tenth Amendment implies that the federal government has no authority over issues not explicitly mentioned in the Constitution, and these include abortion. Thus, the argument goes, the power to legislate on abortion resides with the individual states. This interpretation gained traction after the Supreme Court overturned Roe v. Wade in 2022, effectively returning the issue of abortion to the states to decide.

However, the interpretation of the Tenth Amendment in the context of abortion is not without its complexities. While it may be argued that the Tenth Amendment supports states' rights to determine their abortion policies, it also raises questions about the role of the federal government in protecting individual liberties. The Fourteenth Amendment, for example, grants Congress the power to intervene if a state violates constitutionally guaranteed rights.

The debate surrounding the Tenth Amendment and abortion often revolves around the balance between states' rights and individual rights. Some argue that the federal government should not infringe on states' rights to regulate abortion within their borders. On the other hand, supporters of a national abortion-rights law argue that abortion is a fundamental right that should be protected by the federal government, regardless of an individual state's stance.

In conclusion, the Tenth Amendment plays a crucial role in shaping the legal landscape of abortion in the United States. While it reinforces the principle of federalism and states' rights, it also raises complex questions about the protection of individual liberties, particularly in the context of abortion, where there is a tension between states' rights and individual rights.

The Fourteenth Amendment and abortion

The Fourteenth Amendment, passed by Congress in 1866 and ratified in 1868, extended civil and legal rights to Black citizens, granting citizenship to "all persons born or naturalized in the United States." It also ensured rights in states with discriminatory laws, providing due process of law and equal protection under the law at the federal and state levels.

The Fourteenth Amendment has been central to the abortion debate, with the Supreme Court interpreting it to protect a woman's right to privacy and, by extension, her right to choose abortion. In Roe v. Wade, Justice Harry Blackmun wrote that a woman's right to abortion was implicit in the right to privacy protected by the Fourteenth Amendment. This decision established a framework for the legality of abortions, divided into trimesters. The first trimester gives women an absolute right to abortion; the second allows government regulation to protect the mother's health, but not ban abortion; and the third allows states to prohibit abortion except when the mother's life is at risk, as the fetus is considered viable.

However, the Supreme Court's interpretation of the Fourteenth Amendment in Roe v. Wade has been controversial. While it provided a basis for abortion rights, the decision also acknowledged the state's interest in protecting "potential human life." This balancing act has led to ongoing legal debates and attempts by states to restrict abortion access. In 1992, the trimester framework was overturned in Planned Parenthood v. Casey, giving states more regulatory power over abortions in all trimesters.

Despite the initial ruling in Roe v. Wade, the Fourteenth Amendment's role in protecting abortion rights is not absolute. The Dobbs decision, for example, declared that there is no constitutional right to abortion under the Fourteenth Amendment. This interpretation highlights the ongoing legal debate surrounding abortion and the dynamic nature of constitutional interpretations.

State constitutions and abortion

Since the US Supreme Court overturned Roe v. Wade in June 2022, abortion policies and reproductive rights have been left to individual states. While some states have amended their constitutions to declare that they do not contain any protection for abortion rights or allow public funds to be used for abortion, others have approved laws to protect abortion rights.

As of April 2023, 17 states and the District of Columbia have laws that protect the right to abortion, and three states have protections for the right to abortion in their state constitutions. Four states and the District of Columbia have codified the right to abortion throughout pregnancy without state interference. Twelve states explicitly permit abortion before the fetus is viable or when necessary to protect the life or health of the pregnant person.

In a report published in July 2022, the Center for Reproductive Rights outlined ten states in which high courts recognised that their state constitutions protect abortion rights and access independently from and more strongly than the US Constitution, or had struck down restrictions that were upheld by the US Supreme Court. The report focuses on cases in seven states brought by the Center that resulted in broader protections for abortion rights and access and influenced outcomes in other cases and courts.

The right to decide whether to continue a pregnancy is core to life, liberty, and equality—all rights protected under the US Constitution. Human rights principles and international and comparative law recognise that abortion must be legal and accessible. State courts have the power to guarantee greater protection for abortion rights and reproductive autonomy.

Some state courts have focused on how autonomy—the right to control one's own body without influence or coercion—protects personal rights, including abortion. These state courts have interpreted their constitutional history and traditions more expansively than those federal jurists who have employed a narrow, backward-looking analysis to reject rights such as intimacy, same-sex marriage, and abortion.

The Supreme Court's role in abortion rights

The Supreme Court's decision in Roe v. Wade (1973) was among the most controversial in U.S. history. The ruling stated that the Constitution of the United States generally protected a right to have an abortion, and it struck down many abortion laws. The decision also sparked an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

In June 2022, the Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization, eliminating the constitutional right to abortion and clearing the way for states to ban or severely restrict abortion access. The Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization has been described as defying the global trend towards liberalizing abortion laws and marginalizing the U.S. on the international stage.

The Supreme Court's rulings on abortion have had a significant impact on abortion laws and access in the United States. Following the Court's decision in Roe v. Wade, most states repealed abortion bans that had been in effect since before 1973. However, some states and territories never repealed their pre-Roe abortion bans, and after the Supreme Court overturned Roe v. Wade in 2022, these states could try to revive these bans. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization has already led to a wave of new abortion restrictions and bans at the state level, with 14 states making abortion illegal as of October 2024.

The Supreme Court's rulings on abortion have also had a significant impact on the political landscape in the United States. The abortion debate has reconfigured the voting coalitions of the Republican and Democratic parties, and it remains a highly divisive issue. The Supreme Court's decision to overturn Roe v. Wade in 2022 has further polarized the country, with Democrats and Republicans increasingly divided on the issue.

The impact of Roe v. Wade

Biopolitical Perspective

The decision to overturn Roe v. Wade has been viewed through a biopolitical lens, with the state now regulating the biological aspects of human life. This has historically been used to restrict population growth in "undesirable groups", with a focus on Black, Indigenous, and racialised communities. The loss of constitutional protection for abortion has been seen as a continuation of oppressive control and exploitation, with government control over reproduction determining who can get pregnant and who is "fit to reproduce".

Political Perspective

The overturning of Roe v. Wade has been influenced by political power and the voting process within the Supreme Court, giving certain sections of society power over the reproductive choices of others. This has been particularly detrimental to marginalised communities, including Black and Brown women, undocumented immigrant women, refugees, and asylum seekers, who face significant barriers to accessing safe and legal abortion care. The anti-choice stance of the Republican Party has also influenced US foreign policy, impacting abortion access in other parts of the world.

Medical Humanities Perspective

The impact of the decision goes beyond abortion access, affecting women's embodiment, physical and psychological wellbeing, and their relationships and lives. The loss of constitutional protection for abortion has polarised debates and impacted the ability of women to make choices about their pregnancies and their bodies. This has been particularly harmful to Black, Indigenous, and racialised women, who already face worse maternity and neonatal health outcomes and struggle to access essential medical services due to structural racism.

The overturning of Roe v. Wade has had significant repercussions for women's health and reproductive rights, with a disproportionate impact on marginalised communities. It has led to a loss of constitutional protection for abortion, allowing states to ban the procedure and causing women to travel to other states or countries to access abortion services. This has limited women's choices and reproductive justice, with serious consequences for their health and wellbeing.

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