What does the Constitution say about abortion? Nothing. There are no references in the Constitution to the words “abort”, “abortion”, “woman”, “women”, “birth”, “pregnant”, “pregnancy”, “child”, “children”, or anything about individuals having choices beyond electing representation. Does the Constitution apply to how laws are enacted related to abortion? Absolutely. Keep reading.
What parts of the Constitution may apply to abortion? Let’s discuss the possibilities.
Article VI.
[The Supremacy Clause] This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Amendment I.
[Freedom of Religion Clause] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
Amendment XIV.
SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
What are the most influential laws related to Abortion?
Roe v. Wade
In 1969, "Jane Roe" challenged a number of criminal abortion laws in Texas that were used to force 25-year-old single mother Norma McCorvey to give birth to a child conceived from rape. The State forbade abortion as unconstitutional, except in cases where the mother's life was in danger. Rape was not an acceptable exception to those laws.
Planned Parenthood v. Casey
The Pennsylvania legislature amended its abortion laws in 1988 and 1989. Among the new provisions, the law required informed consent and a 24-hour waiting period prior to the procedure. A minor seeking an abortion was required to have the consent of one parent. A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
The Supreme Court ruled that a law cannot place legal restrictions imposing an undue burden for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus”.
Others
The Texas Heartbeat Act
“AN ACT relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action.”
Mississippi's "Fetal Heartbeat" Law
bill banning abortions once a fetal heartbeat is detected, which occurs at about six weeks. Under this law, after detection of a fetal heartbeat, women would only be able to get an abortion to save their life. Doctors performing an abortion that isn't in compliance with this law would face up to six months in jail.
Partial-Birth Abortion Ban Act of 2003
The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late termination of pregnancy called "partial-birth abortion", referred to in medical literature as intact dilation and extraction. Under this law, any physician "who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both". The law was enacted in 2003, and in 2007 its constitutionality was upheld by the U.S. Supreme Court in the case of Gonzales v. Carhart.
How can a diverse country like the USA come to a consensus on an issue as contentious as abortion? To get to consensus, we must start with questions for which agreement can be reached with relative ease:
Is there some point in which a fetus becomes a human being? I can’t imagine this question not having a very high majority of “Yes” answers, whether from science or religion.
Does Government in the USA have a responsibility to protect the life of human beings? I believe the Constitution pretty clearly makes a strong case for a “Yes” answer, even though the Constitution doesn’t apply to those who aren’t “born”.
Should abortion be a legal option for women’s health care? I think a vast majority would answer “Yes” since even the laws that have been challenged in Court have had use cases where abortion was considered legal (especially in terms of the life of a mother-to-be).
Should abortion be an available option just before, or even after, a full-term delivery? I would be shocked if even one percent of We the People (WtP) didn’t say “No” to that question, even though the Constitution is applicable only to those who have been “born” which, in this case, includes the period following delivery.
Should any law addressing abortion have allowances for specified exceptions? Again, even the most restrictive laws contain exceptions, so I can’t see any path to an answer other than “Yes” to this question.
Should a woman be allowed to take actions, at any point in time, to prevent or terminate a pregnancy? While there are some among WtP that feel strongly that even birth control should not be allowed, I still think an overwhelming majority of WtP would answer this question with a resounding “Yes”. Don’t forget, the USA is supposed to be, according to our Constitution, a Democratic Republic, not a Rule by the Few.
With the easier questions settled, we can then begin to focus our attention and discussions on the more difficult questions:
At what point does a fetus become a human being? Since the Constitution refers only to people who have been “born”, this becomes a question of law. But, who should make the laws and how restrictive can the laws be without violating the Constitutional protections of the pregnant woman who is protected since she is already “born”.
What is the point in fetal development where a Government’s responsibility for protecting human life should outweigh a woman’s choice to abort a pregnancy? Again, the Constitution applies only to those who have been “born”, but it would be very reasonable in 2022 for a Government to protect those who are about to be “born” and certainly those who could live if separated from the mother. It would also be quite unreasonable, on the other hand, to expect a mother-to-be to make an informed choice about whether or not to abort a pregnancy before she has even had time to process the fact that she is pregnant.
From the Constitution:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
- Does any State have jurisdiction over persons before they are “born”? The Constitution does not give any jurisdiction over those who haven’t been “born”, but it also doesn’t prohibit States from exercising jurisdiction, as long as it doesn’t interfere with the Constitutional protections given to those who have been “born”, such as the mother-to-be.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”
- Many of the arguments against legalized abortion are based on religious beliefs. The Constitution does not address people who haven’t been “born”, but it does provide protections against imposing one person’s religious beliefs upon another person?
Roe vs Wade
[the Privacy Clause] “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.”
This is the basis for the 1973 Supreme Court decision known as RoeVWade. The clause applies to the mother-to-be who has been “born”, but it doesn’t apply to the fetus that hasn’t been ”born”. How does this apply to abortion? Ruth Bader Ginsberg herself “argued that it would have been better to take a more incremental approach to legalizing abortion, rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted.” Regardless, the Privacy Clause was not intended to address abortion and its use for such is definitely questionable.
RoeVWade was determined by the Supreme Court to be excessively restrictive. Current laws being enacted by States such as Texas and Mississippi are considered by many to be just as restrictive as the Texas and Georgia laws that were deemed unconstitutional in RoeVWade. But, who is responsible for creating and enforcing laws in the USA, the Representatives of WtP or the Supreme Court of the USA? If WtP have an overwhelming determination that States are being too restrictive with their laws, then WtP have the ability to vote for Representatives in the federal Legislative and Executive Branches of our Government that would represent our determination by placing Constitutionally acceptable boundaries, per the Supremacy Clause of the Constitution, on the States.
What is the point in fetal development where a Government’s responsibility for protecting human life should outweigh a woman’s choice to abort a pregnancy? The Constitution applies to people who have been “born”, but it doesn’t say we can’t put in protections for those who haven’t been “born”. In 2022, that is where the discussion should be focused. We need to move away from the extreme solutions favored by the far right and far left if we are to have any chance of coming to a consensus on this very important issue in what is supposed to be a civilized society. Put limits on abortion while also giving a mother-to-be a reasonable opportunity to decide whether or not to continue a pregnancy to full term.
Personal note: in my younger years as a husband in my early 20s, I was twice faced with the possibility of having to choose abortion of a pregnancy. In the first, a test indicated the possibility the child could be born with spina bifida. In the second, tests indicated the possibility of Down's Syndrome. In both cases, I chose an amniocentesis to confirm, one way or the other. In both cases, I was fortunate that the result was negative and the decision didn't have to happen. In both cases, I would have opted for abortion if the result had been positive. As a Republican, I didn't believe anyone other than my wife and I had any right whatsoever to make that choice. For me, the decision was more about the child than myself but, truth be told, it was what would have been best for both of us and our extended family.
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