Why America No Longer Protects Abortion Rights: A Constitution Perspective

The United States has always had a few ongoing controversial topics, such as the recent consideration by several states to remove DEI (Diversity, Equity, and Inclusion) from universities, affirmative action, transgender rights, and so on. Among them, one of the most contentious cases is the overturning of abortion rights.

On June 24, 2022, the U.S. Supreme Court ruled to overturn Roe v. Wade. As a result, abortion rights are no longer protected by the U.S. Constitution, and a series of subsequent issues arose, such as women potentially being forced to carry the child of their rapist or having to travel to other states for abortion procedures.

But first, why did the court initially rule in favor of protecting women's abortion rights in Roe v. Wade?

It all traces back to the 14th Amendment of the U.S. Constitution: “...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.”

U.S. law often carries a certain degree of ambiguity. After reading the text of the 14th Amendment, we might ask, what exactly do "Due Process" and "Equal Protection" mean?

The U.S. Constitution often doesn't provide overly clear-cut language; instead, it leaves room for the courts to interpret its meaning. At the time, the court interpreted due process as encompassing the right to privacy for citizens. This right to privacy extended to marriage, family relations, and other rights. In 1973, the Supreme Court determined in Roe v. Wade that this right to privacy included the right to an abortion. Equal protection, on the other hand, provides equal rights under the law to various categories, such as race and gender.

So why was the abortion right, established in 1973, overturned?

The justices argued that abortion rights were not deeply rooted in U.S. history and tradition, and that the due process clause in the 14th Amendment did not protect the right to abortion.

It is important to note that in cases involving gender issues, the Supreme Court typically applies intermediate scrutiny, meaning a law must serve an important government interest and be closely related to that interest. However, in this case, the court applied rational basis review, a less stringent standard. This made it easier for laws restricting abortion to pass. Why? Because the justices believed that pregnant and non-pregnant women are different.

Why does the court have the final say on this matter? This comes down to the separation of powers in the U.S. government: the Constitution divides the government into three branches—legislative, executive, and judicial. The legislative branch is responsible for making laws, while the judicial branch resolves legal disputes.

However, in this case, the court's actions seemed as though they had legislative power. The court declared that the 14th Amendment protects abortion rights, and so it did, but when they decided it didn't, it no longer did. The court asserted that it would resolve this issue according to the Constitution, and as a result, states were given the authority to decide the legality of abortion on their own.

The Supreme Court’s basic view is that abortion is a morally controversial issue and the federal government should not create laws regulating it. Instead, the right to decide whether abortion is legal should be left to the states, allowing them to better represent the will of the people. This reflects an originalist interpretation of the Constitution, meaning that since the Constitution does not explicitly protect abortion rights, abortion is not constitutionally protected. The opposing view is the "living Constitution," which argues that constitutional interpretation should reflect the values of current society. Under this view, the due process clause of the 14th Amendment can be interpreted to encompass the right to privacy, including the right to abortion.

Another noteworthy point is that the justices who made these rulings were specifically selected for their conservative views. U.S. Supreme Court justices are appointed by the president. Now, 50 years after Roe v. Wade, the legal texts have not changed, but the composition of the court has. As the court began interpreting the Constitution based on the values of the era, it began to create laws rather than just interpreting existing ones. In this process, they are likely to impose their personal values and views on court decisions, making rulings they deem correct. Because the U.S. Constitution is notoriously difficult to amend, the country seems to depend on these justices’ interpretations to ensure the law evolves with the times.

If the court deems this approach appropriate, it must also bear the consequences of its actions.