Abortion Laws: Unconstitutional, Unjust, And A Violation Of Rights

The topic of abortion laws and their constitutionality is a highly debated issue in the United States, with the Supreme Court's Roe v. Wade ruling in 1973 as a focal point. This ruling recognised the right to abortion as a fundamental right, placing reproductive decision-making under the protection of the Fourteenth Amendment's liberty guarantee, which safeguards individual privacy. However, the Supreme Court overturned Roe v. Wade in 2022, eliminating the federal constitutional right to abortion and sparking intense discussions about the constitutionality of abortion laws.

Roe v. Wade established abortion as a constitutional right

Roe v. Wade (1973) is a landmark decision of the U.S. Supreme Court in which the 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 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.

The case was brought by Norma McCorvey, under the legal pseudonym "Jane Roe", who, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. The decision also radically reconfigured the voting coalitions of the Republican and Democratic parties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision.

The Supreme Court's decision in Roe v. Wade held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion. It also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.

The Court reasoned that outlawing abortions would infringe a pregnant woman's right to privacy for several reasons: having unwanted children "may force upon the woman a distressful life and future"; it may bring imminent psychological harm; caring for the child may tax the mother's physical and mental health; and because there may be "distress, for all concerned, associated with the unwanted child".

The Court also classified the right to abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the most stringent level of judicial review in the United States.

The Supreme Court overruled Roe in 2022, ending the constitutional right to abortion.

The Supreme Court has abandoned its duty to protect fundamental rights

The Supreme Court's overturning of Roe v. Wade in 2022 has been seen by many as an abandonment of its duty to protect fundamental rights. The ruling in Dobbs v. Jackson Women's Health Organization ended the federal constitutional right to abortion in the United States, marking the first time in history that the Supreme Court has taken away a fundamental right.

The 1973 Roe v. Wade decision recognized that the decision to continue or end a pregnancy belongs to the individual, not the government, and placed reproductive decision-making alongside other fundamental rights, such as freedom of speech and religion. It affirmed that the "`liberty` guaranteed in the Fourteenth Amendment of the U.S. Constitution, which protects individual privacy, includes the right to abortion prior to fetal viability."

By overturning Roe v. Wade, the Supreme Court has effectively taken away people's ability to make personal decisions about their bodies and their lives, infringing on their liberty and privacy rights. This goes against the very essence of the Fourteenth Amendment, which is meant to secure the rights and liberties of all persons.

The impact of this decision has been far-reaching, with more than a dozen states banning abortion outright, forcing individuals to travel great distances to access abortion care or carry unwanted pregnancies to term. This has particularly affected communities of color, where systemic racism has long blocked access to healthcare and opportunity.

The Supreme Court's decision to overturn Roe v. Wade has, therefore, been seen as a failure to protect the vulnerable and innocent and an abdication of its duty to uphold fundamental rights, including the right to privacy, liberty, and equality. The Court's role is to interpret the Constitution and protect the rights enshrined within it, not to impose its own policy preferences or restrict rights that have been recognized for nearly 50 years.

Abortion bans violate the Fourteenth Amendment

The Fourteenth Amendment, passed by Congress in 1866 and ratified in 1868, guarantees several rights that are relevant to the abortion debate. Firstly, it grants citizenship and legal rights to those who were formerly enslaved, ensuring that "all persons born or naturalized in the United States" are considered citizens. Additionally, it prohibits states from depriving any person of "life, liberty, or property, without due process of law," and from denying them "the equal protection of the laws."

The Supreme Court's ruling in Roe v. Wade in 1973 centred on the interpretation of these clauses in the Fourteenth Amendment. The Court held that a woman's right to an abortion falls under the right to privacy, which is protected by the Amendment. This ruling established a framework for the legality of abortions based on trimesters:

• First Trimester (up to 12 weeks): Women have an absolute right to an abortion without state interference.
• Second Trimester (up to 28 weeks): The state 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," states can prohibit abortion unless the mother's life is at risk.

However, this trimester framework was overturned in 1992 by the Supreme Court case Planned Parenthood v. Casey, which gave states more leeway in regulating abortions. The Court introduced the "undue burden" standard, which requires plaintiffs challenging an abortion law to demonstrate that it imposes a "substantial obstacle" to obtaining an abortion.

The debate around abortion and the Fourteenth Amendment centres on the interpretation of "due process" and "equal protection" clauses. Abortion bans can be seen as a violation of the Fourteenth Amendment because they:

• Infringe on a Woman's Liberty: Abortion bans restrict a woman's freedom to make personal decisions about her body and her reproductive choices. This infringes on the liberty clause of the Fourteenth Amendment, which has been interpreted by the Supreme Court to include the right to make personal choices regarding family, marriage, and childrearing.
• Deny Equal Protection: Abortion bans disproportionately impact women, as they are the ones who bear the physical and social consequences of pregnancy and childbirth. By restricting their access to safe and legal abortions, abortion bans can be seen as a form of gender discrimination, violating the equal protection clause.
• Deprive Life Without Due Process: Abortion bans can be argued to deprive a pregnant person of their life by forcing them to undergo a medical procedure (childbirth) without their consent. This argument centres on the idea that the state should not compel individuals to undergo medical procedures against their will, and that abortion bans therefore violate the due process clause.
• Infringe on Privacy Rights: The Supreme Court has previously held that the Fourteenth Amendment's protection of liberty includes a right to privacy, which encompasses a woman's decision to terminate her pregnancy. Abortion bans directly contradict this interpretation and infringe on privacy rights.

Abortion restrictions disproportionately affect marginalised communities

The consequences of restricted access to safe abortions are far-reaching. For example, carrying a pregnancy to term can endanger the pregnant person's life, disrupt educational plans, and change someone's career trajectory, compounding disadvantages for already marginalised groups. Furthermore, abortion restrictions can lead to unsafe abortions, which are the third leading cause of preventable maternal deaths worldwide and can result in long-term health issues.

Health services, including abortion services, are generally less accessible to people on low incomes, refugees and migrants, LGBTI+ people, and racialised and Indigenous people. This means that some people may have to travel to access safe services, which can be cost-prohibitive. In some countries, such as Morocco, abortion is criminalised in almost all circumstances, and clandestine abortions are unaffordable for those living in poverty.

The criminalisation of abortion also has a compounding impact on those who are already marginalised. For example, people who are unable to access safe abortions may resort to unsafe, clandestine abortions, which can lead to fatal consequences such as maternal deaths and disabilities. Additionally, those who are unable to obtain a legal abortion may face legal repercussions, such as imprisonment, and social stigma, which can result in further marginalisation and a loss of respect from their community.

The right to bodily autonomy and reproductive autonomy is a human right that should be available to everyone, regardless of their marginalised status. However, abortion restrictions create barriers that disproportionately affect marginalised communities, exacerbating existing inequalities and hindering their ability to exercise their reproductive rights.

Abortion laws are a matter for states to decide

The issue of abortion laws has been a highly contested topic in the United States for decades. In 1973, the US Supreme Court ruled in Roe v. Wade that the Constitution of the United States generally protected a right to have an abortion. This decision struck down many abortion laws and sparked an ongoing abortion debate in the country. The Supreme Court's ruling in Roe v. Wade was among the most controversial in US history, with critics arguing that it was a form of judicial activism and did not go far enough in protecting abortion rights.

In June 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, eliminating the federal constitutional right to abortion. As a result, abortion laws are now a matter for individual states to decide. This has led to a divide between "abortion deserts", where abortion is illegal and inaccessible, and "abortion havens", where abortion remains accessible.

Currently, abortion is illegal in 13 states, with more states working to pass bans. However, 17 states and the District of Columbia have laws that protect the right to abortion, and 4 states have passed a constitutional amendment explicitly declaring that their constitution does not secure or protect the right to abortion. In addition, 3 states have protections for the right to abortion in their state constitutions, and 4 states and the District of Columbia have codified the right to abortion throughout pregnancy without state interference.

The Center for Reproductive Rights has been working to build strong abortion protections at the state level, independent of federal law. Their efforts have resulted in 10 states recognizing that their state constitutions protect abortion rights and access more strongly than the US Constitution. With unique constitutions and court systems, states have the freedom to guarantee greater protection for abortion rights and reproductive autonomy.

While the Supreme Court's decision to overturn Roe v. Wade has been celebrated by those opposed to abortion, it has also sparked concern and protests from those who support abortion rights. The issue of abortion laws remains highly divisive, and the debate is likely to continue as states decide on their own abortion policies.

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