The Basics of a Woman’s “Constitutional Right to Abortion”

protest
WASHINGTON, DC – JUNE 24: Pro-choice activists protest in response to the Dobbs v Jacksons Women’s Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022 in Washington, DC. (Photo by Brandon Bell/Getty Images)

I’ve been watching numerous commentaries on the news and especially social media saying that religion was the reason SCOTUS overturned Roe vs. Wade and returned rights on how abortions are to be managed over to the states.

I’ve also been reading a lot about “a woman’s Constitutional right to an abortion.” But no part of the Constitution mentions “abortion” so where did that come from?

I have no desire to enter into a lengthy diatribe and I’m certainly not an attorney (they’re really longwinded, even on paper) so I’ll briefly quote a few sources and let you follow up as you will.

Going to the Cornell Law School Legal Information Institute, interpreting the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In Roe v. Wade, the Court established a right of personal privacy protected by the Due Process Clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review. Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection. Finally, the Court summarily announced that the “ Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy” and that “his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

That was the original justification for a “woman’s Constitutional right to abortion” in 1973. What changed after nearly fifty years?

Here are the basics from SCOTUSblog.com:

The decision came in Dobbs v. Jackson Women’s Health Organization, a challenge to a 2018 Mississippi law that bans virtually all abortions after the 15th week of pregnancy. The law carves out exceptions for medical emergencies and cases involving a “severe fetal abnormality” but does not make exceptions for cases involving rape or incest. It never went into effect, however, because the lower courts – including the conservative U.S. Court of Appeals for the 5th Circuit – found the law clearly inconsistent with Roe and Casey and blocked the state from enforcing it. Friday’s decision reversed the lower courts and upheld the law.

Now here’s the key (emphasis mine):

The majority contended that Friday’s ruling would not undermine other decisions by the court involving fundamental rights that the Constitution does not expressly mention, such as the right to contraception (Griswold v. Connecticut) and the rights to same-sex intimacy (Lawrence v. Texas) and marriage (Obergefell v. Hodges). Unlike those rights, Alito wrote, abortion terminates what Roe and Casey refer to as “potential life” and what the Mississippi law refers to as an “unborn human being.” “Nothing in this opinion,” Alito added later, “should be understood to cast doubt on precedents that do not concern abortion.”

Roe vs. Wade granted a right that was unique among all other rights in that it allowed for the destruction of “potential life” and an “unborn human being.” In spite of what many people including Senator Elizabeth Warren have said, a fetus is unique in that it has the sole potential for becoming a fully-realized human being. It is NOT like having an appendix removed and it is NOT like having a tumor excised.

But if the court is supposed to follow precedent, how could Roe vs. Wade be overturned at all?

According to The Conversation:

Over the centuries, courts have stated many reasons they should adhere to precedent. First is the idea of equity or justice, under which “like cases should be decided alike,” as one senior federal judge put it. If a court in the past reviewed a particular set of facts and decided a case in a specific way, fairness dictates it should decide another similar case the same way. Precedent promotes uniformity and consistency in the law.

However:

For most of its history the court changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions.

And…

The court has also said that its precedents based on constitutional grounds deserve less respect than those in which the court interprets statutes or laws. The reason is that if Congress thinks the court has erred in a matter of interpreting a statute or law, it is relatively easy for them to overturn it by passing a new law. But it’s quite hard to pass a constitutional amendment, so the only real way to update the judicial understanding of the Constitution is to overrule a precedent.

Of course the most famous reversal of precedent is the 1954 Brown v. Board of Education under the Warren Court, in which it reversed Plessy v. Ferguson and struck down segregation under the “separate but equal” doctrine.

You may recognize “separate but equal” from history, but it occurred (barely) within my life time when black people had to use separate water fountains, bathrooms, and so forth from white people. It was a precedent that was struck down for the reasons stated above.

Finally:

In 2020, Justices Neil Gorsuch and Brett Kavanaugh in Ramos v. Louisiana went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito’s discussion in 2018 in Janus v. American Federation of State, County, and Municipal Employees Council Number 31. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.

For those who disagree with yesterday’s SCOTUS decision, legally it was certainly within the typical and allowed practices of the high court. The decision as documented by said-court, was not for religious reasons, although I can’t read minds to know what each justice was thinking as the court rendered its ruling.

Certainly this is exceedingly controversial, but the court didn’t pull this one out of left field.

I won’t go into why Abortion isn’t actually illegal. People can look that up for themselves. Slightly more than half of the states protect or allow abortions pretty liberally. 23 of them are likely to be really restrictive. Each state is allowed to provide their own laws regarding access to abortions and under what circumstances.

Yes, I’m approaching this largely from an intellectual and fact-based point of view. As far as I can tell, nearly everyone opposing the court’s decision is reacting with an excess of emotion, from private citizens to politicians. I can’t compress all of this into a tweet on twitter or a post on Facebook, so I’m blogging it. So far, I haven’t received any actual “hate mail” but I suppose that’s not off the table.

2 thoughts on “The Basics of a Woman’s “Constitutional Right to Abortion””

  1. Dear James,

    Hello! I would like to have the pleasure and honour of commending you for your excellent summary of the main issues surrounding the SCOTUS’ decisions on abortion and its striking down Roe v. Wade, which can have various implications and ramifications for the following:

    Reproductive freedoms…
    LGBTQ freedoms…
    Contraceptive freedoms…
    Migrants freedoms…
    The freedom of liberty (common sense gun safety, and police reform)…
    The right to vote…

    You are invited to peruse my latest post entitled “🏛️⚖️ The Facile and Labile Nature of Law: Beyond the Supreme Court and Its Ruling on Controversial Matters 🗽🗳️🔫🤰🧑‍🤝‍🧑💉”:

    https://soundeagle.wordpress.com/2022/06/26/the-facile-and-labile-nature-of-law-beyond-the-supreme-court-and-its-ruling-on-controversial-matters/

    May you have a wonderful and productive weekend!

    Yours sincerely,
    ჱܓSoundEagle🦅

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