Meet the Many Ways the Constitution Protects a Woman’s Right to Choose an Abortion

by | Jan 18, 2024 | Opinions & Commentary

Photo by Marcelo Leal

Meet the Many Ways the Constitution Protects a Woman’s Right to Choose an Abortion

by | Jan 18, 2024 | Opinions & Commentary

Photo by Marcelo Leal

Though the Constitution does not mention the word “abortion,” several of the Amendments should be interpreted to protect a woman’s right to have one.

Republished with permission from Tennessee Lookout, by Ren Brabenec

Millions of women lost half a century of legal protection following the overturning of Roe v. Wade in SCOTUS’s 2022 Dobbs decision. The ruling has led to a patchwork of wildly different laws across the states.

Even as the latest polls show 64% of U.S. adults believe abortion should be legal in all or most cases, and even as the pro-choice position has won on ballot measures in every election since Dobbs, many state legislatures have kept the abortion issue away from their voters. Republican-controlled legislatures in 24 states have passed or are working on total or near-total abortion bans.

This landscape is untenable, as 167.5 million women now experience wildly different rights depending on what state they live in.

How does a document that does not mention the word ‘abortion’ protect a woman’s right to one?

The Constitution was designed to afford all Americans rights and liberties regardless of their home state. Though the Constitution does not mention the word “abortion,” several of the Amendments should be interpreted to protect a woman’s right to have one.

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Since the nation’s founding, people of various faiths have held different views on abortion, on when life begins, and on what constitutes personhood. The question of when life begins remains a spiritual and religious one; therefore, federal and state governments cannot show a preference for certain religious groups and their beliefs over others. Governments cannot pass abortion bans simply because some religious groups hold the spiritual view that a fetus constitutes human life.

The Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

When a government bans abortion, it violates the right of the people (women) to be secure in their persons (bodies) against government seizure (gov’t control of uteruses).

The Fifth Amendment

“Private property shall not be taken for public use without just compensation.”

Abortion bans violate the Fifth Amendment when the government does not compensate women for the 40 weeks their property (uteruses) are made to serve the state’s interest of birthing more humans. Also of note, legal scholars undermined exclusively male mandatory military service on the grounds that the draft violated the equal protection clause of the 5th Amendment, as it was a discriminatory burden applied only to men. Women prevented from accessing abortion face a similar discriminatory burden that is applied only to them.

The Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Women are 14 times more likely to die from a pregnancy than an abortion. The U.S. ranks 55th in maternal mortality, falling behind every developed nation in the world. Women often undergo serious complications from pregnancy that negatively affect them for life. The Eighth Amendment was intended to protect convicted criminals from cruel and unusual punishment, so it seems odd that state governments would be so quick to exert the cruel and unusual punishment of a forced gestational period on millions of women who have committed no crime.

The Ninth Amendment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

As mentioned earlier, abortions occurred legally and were not uncommon when the Constitution was written. Founding Father Benjamin Franklin famously wrote an abortion recipe and added it to a textbook he widely distributed across the nascent country. Abortion remains a right the people have despite that right not being explicitly stated in the Constitution, much like the rights to travel, vote, and marry.

The 13th Amendment

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.”

While ratified to abolish slavery, the 13th Amendment has been used in legal arguments against human trafficking, child labor, and mandatory military service. Abortion bans are not so different, as they remove women’s control of their bodies and force them to endure the dangerous work of pregnancy.

The 14th Amendment

“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] 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.”

In addition to explicitly providing protections only to persons born in the United States (notably, not to fetuses), the 14th Amendment has been used for over a century to protect Americans’ rights to make decisions related to family, marriage, and childrearing, as well as decisions relating to one’s body and privacy. Thanks to the liberty clause of the 14th Amendment, the government cannot force a parent to give one of their organs to their dying child who needs it, even if the child will die as a result of the parent’s decision. With that being true, abortion bans that force pregnant women to continue gestating their fetuses are obviously unconstitutional. The equal protection language of the 14th Amendment also applies, as abortion bans are discriminatory and impose a burden on women but not on men (even as men bear responsibility for causing unwanted pregnancies).

Even as bans are ratified, abortions increase

Removing women’s rights to abortion is unconstitutional and will not result in fewer abortions. The thirty-year decline in abortions has reversed, with 8% more abortions occurring in 2020 than in 2017 and 5% more occurring in 2021 than in 2020. In the year following the Dobbs decision, states that banned abortions saw 114,590 fewer abortions than expected, but states that allowed the procedure saw 116,790 more abortions than expected, a net increase.

Fewer Americans are becoming pregnant, and a greater percentage of those who do are seeking abortions. Rather than infringing on the Constitutional rights of women, red states like Tennessee should see the warning signs for what they are: American pregnancy and birth rates are declining! States should provide the support their residents need to willingly raise healthy, happy children. States must stop spending their legislative sessions concocting cruel ways to control women.

Ren Brabenec is a Nashville-based freelance writer and journalist. He reports on politics, local issues, environmental stories, foreign policy, and the economy. For questions, comments, or to suggest a story, email, hello@renbrabenec.com.

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