To understand the history of abortion and to understand the grounds on which it is being questioned, it is important to have a basic understanding the U.S. Constitution’s Due Process clause, which appears in several Amendments to the Constitution, but is most often cited in the Fourteenth Amendment.1 This Amendment and the clauses it includes serve as the basis for numerous constitutional rights. These rights generally fall into one of three categories: the right to procedural protections (the right to receive notification before termination of an “entitlement,” such as federally funded health insurance), the individual rights listed in the Bill of Rights (such as the right to freedom of speech and to bear arms), and finally, the guarantee of fundamental rights not specifically stated elsewhere in the constitution, such as the right to obtain an abortion.2 The first section of the Amendment reads,
“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.”3
While the piece referring to “due process” in this excerpt generally refers to a jury trial, the clause of the Fourteenth Amendment that is consistently debated in discussions of abortion is the excerpt that comes directly before, as the United States has often disagreed on what constitutes “life liberty, or property.”
Based on the privacy precedent set by Griswold v. Connecticut (1965), advocates for the passage of Roe categorized it as a privacy right that was protected under the category of “freedoms” or liberties guaranteed by the constitution.4 This meant that any state restrictions placed on abortion had to be determined as necessary to a significant state interest.5 The privacy standard set in Griswold v. Connecticut (1965), has, since its passage, been interpreted not only to aid in the passage of Roe, but also to allow for establishment of numerous rights. These include the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015).6
In the case of Planned Parenthood of Southern Pennsylvania v. Casey (1992), the Court determined that Pennsylvania’s law requiring spousal permission for an abortion was unconstitutional and placed an “undue burden” on married women seeking abortions.7 This court decision was decided, in part, on the basis and precedent of Griswold v. Connecticut and its emphasis on privacy. From the Fourteenth Amendment, advocates for Casey specifically cited the “equal protections” clause, stating that this decision was a deliberate one by the court to “retain and reaffirm” women’s right to abortion. However, the same “undue burden” provision, because it was incredibly vague, set the stage for new restrictions to be enacted, such as mandatory waiting periods and the requirement of parental consent for minors.8
The SCOTUS draft overturns not only Roe, but also Casey, and though Alito writes that abortion is “fundamentally different” from other rights established by the cases on which Roe and Casey are based9 (such as Griswold v. Connecticut), its overturn does mean that these other rights, too, could, in practice, be in jeopardy. Additionally, in addressing these overturns, Alito writes that any rights not explicitly mentioned in the constitution must be “deeply rooted in this country’s history and tradition.”10 Considering that the Court does not view abortion rights as meeting this standard, it is difficult to see how they will understand this standard to be met by other rights that have not always been present in a country with a long history of inequalities and discrimination based on factors that include race, class, ability, and gender.
Endnotes
1. Interpretation: The Fourteenth Amendment Due Process Clause. The National Constitution Center. (n.d.). https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/7012.
2. Ibid.
3. Ibid.
4. Solinger, Rickie. “The Legal Context.” Essay. In Reproductive Politics: What Everyone Needs to Know. Oxford University Press, 2013.
5. Supra notes 1-3.
6. Ibid
7. Supra note 4.
8. Ibid.
9. Dobbs v. Jackson Women’s Health Organization, 28, N.A., U.S. (2022).
10. Ibid.