How Does The 14th Amendment Protect Abortion
The U.S. Supreme Court has overturned Roe v. Wade, bringing to the forefront the history of the 1973 decision and how it came to be, including the role the 14th amendment played.
What is the 14th amendment?
The 14th Amendment was passed by Congress in 1866 and ratified in 1868. It extended both civil and legal rights for Black citizens who were formerly enslaved, granting citizenship to “all persons born or naturalized in the United States” and also ensured rights to those in states where discriminatory laws were in place. Under the amendment, the right to due process of law and equal protection of the law applied at both the federal and state levels of government.
What did the amendment do for the right to privacy?
The 14th amendment states that “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.” The Supreme Court ultimately used that to endorse other rights and prevent states from implementing laws that restrict those not directly stated in the Constitution, including the right to privacy.
What did the 14th amendment have to do with Roe v. Wade?
Writing for the majority opinion in Roe v. Wade, Justice Harry Blackmun said that the court held a woman’s right to an abortion was implicit in the right to privacy protected under the 14th Amendment. However, while the Supreme Court ruled in favor of a woman’s right to choose, it also acknowledged the state’s interest in protecting the “potential of human life.”
To balance the competing interests, the court established a “trimester” framework for the legality of abortions:
- First Trimester (up to 12 weeks): Gives a woman an absolute right to an abortion in the first three months of pregnancy.
- Second Trimester (up to 28 weeks): Allows the government to regulate abortion in order to protect the mother’s health, but cannot ban it.
- Third Trimester (up to 40 weeks): Because the fetus is considered “viable” — can survive on its own outside the womb (about 24 weeks of pregnancy) — states can prohibit abortion except in cases when the mother’s life is at risk.
Many states sought to circumvent Roe by imposing procedural hurdles upon women seeking abortions and the Supreme Court was repeatedly tasked with deciding whether these restrictions violated a woman’s right to privacy.
Then in 1992, the trimester framework was overturned in a ruling of the Supreme Court case known as Planned Parenthood v. Casey. Though the justices reaffirmed a woman’s right to an abortion under Roe, they also gave states more leeway in regulating them in all three trimesters.
The court ruled that in order for a plaintiff to succeed in a constitutional challenge, the law they are protesting must be shown to have the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” That meant states could pass regulations that impacted the ability to have the procedure even in the first trimester under the guise of safeguarding a women’s health. Under this new test, many abortion restrictions have been upheld.
Is abortion a constitutional right?
Not under the U.S. Constitution, according to the current Supreme Court. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned Roe v. Wade (1973), which guaranteed a constitutional right to abortion. Some state constitutions, however, independently protect abortion rights.
In Roe v. Wade, the Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. And after fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve life and health.
For the following 49 years, states, health care providers, and citizens fought over what limits the government could place on abortion access, particularly during the second and third trimesters. But abortion was fundamentally legal in all 50 states during that period.
Following Dobbs, reproductive rights are being decided state by state. Constitutions in 10 states — Alaska, Arizona, California, Florida, Kansas, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico — have been interpreted by state high courts to guarantee the right to abortion or protect access more strongly than the federal constitution. Other state legislatures have passed laws protecting abortion rights. Many states, however, have made abortion illegal.
The road to Roe
Abortion was illegal in most states in the 1960s, often with no exceptions for cases of rape or threat to life. A pair of high-profile crises, however, shined a spotlight on the impact of these restrictions.
Beginning in the late 1950s, thousands of babies were born with severe birth defects after their mothers took the morning sickness drug thalidomide. The most well-known case was that of Sherri Finkbine, a host of the children’s television program Romper Room, who was forced to travel to Sweden to obtain an abortion. A Gallup poll showed, perhaps surprisingly given the legal backdrop, that a majority of Americans supported Finkbine’s decision.
Shortly after the thalidomide scandal, an epidemic of rubella, or German measles, swept across the country. Babies that survived rubella in utero were often born with a wide range of disabilities such as deafness, heart defects, and liver damage. It was in this environment of maternal risk that high-profile doctors began to argue publicly that abortion should be treated like other medical procedures — as a decision to be made between physician and patient.
While thalidomide and rubella impacted public perspectives on abortion, a series of cases built the foundation for the coming revolution in abortion law. The first involved the right to contraception, and the story begins in the 19th century.
In 1879, Connecticut senator P.T. Barnum introduced a bill barring not only contraceptives but also the distribution of information relating to them. The Barnum Act was still on the books in Connecticut in 1960, when the Food and Drug Administration approved the first oral contraceptive. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, was fined $100 for violating the law. Her appeal went all the way to the Supreme Court.
In Griswold v. Connecticut, a seven-justice majority struck down the Barnum Act. Justice William O. Douglas explained that the Bill of Rights implies a right to privacy because when viewed as a coherent whole, it focuses on limiting government intrusions. The Griswold majority held that the government cannot prevent married couples from accessing contraception. Griswold’s contention that the Constitution creates a zone of privacy into which the government cannot enter paved the way for Roe, among other landmark decisions.
The road from Griswold to Roe was not perfectly straight. Two years after Griswold, reproductive rights activist William Baird offered contraceptives to an unmarried woman after a lecture on contraception to students at Boston University. He was sentenced to three months in prison. Like Estelle Griswold, Baird appealed his conviction to the Supreme Court. In Eisenstadt v. Baird, the Justices extended Griswold. Justice William Brennan, writing for the six-justice majority, explained that the 14th Amendment guarantees equal protection under the law. There was no reason to treat married and unmarried people differently with regard to contraception.
Over the course of nine years, Washington, DC,–based physician Milan Vuitch was arrested 16 times for performing abortions, which had been illegal in the district since 1901 except “as necessary for the preservation of the mother’s