Constitutional Law And Abortion Rights: Exploring The Legal Framework

In 1973, the US Supreme Court ruled in Roe v. Wade that the US Constitution protects a woman's decision to terminate her pregnancy. The Court's decision was based on the conclusion that the right of privacy, founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, encompassed a woman's decision to carry a pregnancy to term. The Court's decision in Roe v. Wade was among the most controversial in US history, sparking an ongoing national debate about whether, or to what extent, abortion should be legal. In 2022, the Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization, stating that the right to abortion was not deeply rooted in this Nation's history or tradition.

The right to privacy

In the 1973 Roe v. Wade case, the US Supreme Court ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws and caused an ongoing abortion debate in the United States. The Supreme Court's decision in Roe was among the most controversial in US history.

The Fourteenth Amendment

> 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 Supreme Court interpreted this to mean that the Fourteenth Amendment protects a right to privacy, which includes a woman's right to an abortion. This right to privacy was also used to prevent states from implementing laws that restrict rights not directly stated in the Constitution.

Writing for the majority opinion in Roe v. Wade, Justice Harry Blackmun said that a woman's right to an abortion was implicit in the right to privacy protected under the Fourteenth Amendment. However, the Supreme Court also acknowledged the state's interest in protecting the "potential of human life".

To balance these competing interests, the court established a "trimester" framework for the legality of abortions:

• First Trimester (up to 12 weeks): Women have an absolute right to an abortion in the first three months of pregnancy.
• Second Trimester (up to 28 weeks): The government can regulate abortion to protect the mother's health, but cannot ban it.
• Third Trimester (up to 40 weeks): As the fetus is considered "viable" and can survive on its own outside the womb (about 24 weeks into the pregnancy), states can prohibit abortion except in cases where the mother's life is at risk.

In 1992, the trimester framework was overturned in a ruling of the Supreme Court case known as Planned Parenthood v. Casey. While the justices reaffirmed a woman's right to an abortion under Roe, they also gave states more leeway in regulating abortions in all three trimesters.

The Fifth Amendment

In the United States, abortion was a common practice and was not always a public controversy. However, in the 19th and early 20th centuries, pre-quickening abortions were considered actions without a lawful purpose, and if the mother died, the individual performing the abortion could be charged with murder.

In the landmark case of Roe v. Wade, the Supreme Court ruled that the Constitution generally protected a right to have an abortion. The decision struck down many abortion laws and sparked an ongoing debate about whether, or to what extent, abortion should be legal.

Following Roe v. Wade, several federal abortion restrictions were challenged as infringing on the right guaranteed by the Fifth Amendment's Due Process Clause. The Due Process Clause protects an individual's liberty to choose concerning family life and protection from legal enforcement intended to maintain traditional sex roles.

However, it's important to note that the Fifth Amendment does not explicitly mention abortion, and the right to abortion is not considered one of the fundamental liberties protected by the US Constitution. The Supreme Court's decision in Roe v. Wade was based on the interpretation of the right to privacy and the conclusion that this right encompassed a woman's decision to carry a pregnancy to term.

While the Fifth Amendment provides some protection for individuals seeking abortions, it does not confer an absolute right to abortion. The Supreme Court has acknowledged that the liberty guaranteed by the Fifth Amendment's Due Process Clause protects a woman's freedom of choice for certain personal decisions, but it does not provide an entitlement to funds or resources necessary to realize all the advantages of that freedom.

The Supreme Court's role

The Court's ruling in Roe v. Wade had far-reaching implications. It struck down many abortion laws across the country and sparked an ongoing national debate about the legality and extent of abortion rights. The decision also shaped discussions on the methods and approaches the Supreme Court should employ in constitutional adjudication.

The Roe v. Wade decision established a framework for evaluating abortion regulations, known as the "strict scrutiny" standard, which required courts to closely scrutinize challenged abortion laws. However, this framework was later replaced by the “undue burden” test in the 1992 Planned Parenthood v. Casey decision.

The Supreme Court's ruling in Roe v. Wade was highly controversial and faced criticism from various quarters, including legal scholars, feminists, and religious groups. The decision was criticised for its legal reasoning, characterised as "judicial activism" and "raw judicial power." The Court's interpretation of the Constitution and the establishment of a right to privacy were particularly contentious.

In 2022, the Supreme Court overruled Roe v. Wade in the Dobbs v. Jackson Women's Health Organization case, ending the constitutional right to abortion. This decision was based on the grounds that the right to abortion was not deeply rooted in the nation's history or tradition and was unknown in U.S. law prior to Roe v. Wade.

The trimester framework

In 1992, the Supreme Court overruled Roe's trimester framework in Planned Parenthood v. Casey, abandoning its "strict scrutiny" standard in favour of an "undue burden" test.

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