Is there a constitutional right to abortion?

By Grey G.

Well, the current Supreme Court would argue there isn’t. Last week they overturned the landmark Roe v. Wade (1973) case which had recognised the constitutional right to abortion. So, is there is a constitutional right to abortion, and if so, why was Roe v. Wade overturned? And if there isn’t a constitutional right to abortion, what was the basis for the Roe v. Wade ruling?

Roe v. Wade was centred around the right to privacy. Bear in mind that the right to privacy is not actually explicitly mentioned in the US constitution. Instead there are various amendments that imply it. The ruling in 1973 and subsequent rulings until last week claimed that the right to abortion was an extension of this right to privacy. This right to privacy, they argued, can be derived from the Fourteenth Amendment and its concept of personal liberty:

“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.” – Extract from the Fourteenth Amendment

Therefore, from the Fourteenth Amendment, the Supreme Court came to the conclusion in 1973 that the right of personal privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”.

However, there are fundamental flaws with this argument. To start with, the Fourteenth Amendment makes no explicit reference to abortion; it only mentions that the state does not have a right to “deprive” a person of “liberty”. Moreover, the Fourteenth Amendment was ratified in 1868, during a period of increased criminalization of abortion – by 1868 three-quarters of states had made abortion a crime at any stage of pregnancy. This did not change until the Roe v. Wade ruling. Therefore, the Fourteenth Amendment and its writers had no intention of creating a constitutional right of abortion and so the Amendment should not be interpreted to do so. This formed much of the basis of the Dobbs v. Jackson Women’s Health Organisation ruling which overturned Roe v. Wade.

When Justice Rehnquist was dissenting the Roe vs Wade ruling back in 1973, he also used the argument that abortion does not fall under the right of privacy. He argued that an abortion is a transaction between a physician and a patient. As such, he believed that an abortion is not a ‘private matter’ and so the right of privacy does not extend to abortion.

As a result, it has been widely known that the Roe v. Wade ruling was very fragile and in threat of being overturned as it has now. Ruth Bader Ginsburg wanted the right of abortion to be settled on a stronger case that relied on the right to equal protection in the constitution rather than the right to privacy. However, it is the fault of the governments of the past fifty years since the ruling for not explicitly making the right to abortion a constitutional right. Their failure to do so has allowed the overturning of the Roe v. Wade case to result in abortion being immediately criminalised by many states, taking away rights and ruining lives. 

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