Abortion is Legal, Period, End of Story, and Here’s How

Unless you have been living under a rock, you have likely heard about the leaked draft of a preliminary Supreme Court draft decision written by Justice Samuel Alito which completely overturns 1973’s Roe v Wade decision, ensuring American women’s right to privacy in relation to pregnancy-related health care, specifically abortion. While this leaked document is only a draft, the final decision on the case, called Dobbs vs Jackson Women’s Health Organization, will determine whether the state of Mississippi is allowed to keep their state-wide 15-week abortion ban in place, violating the original rule decided in Roe, or in the subsequent Casey decision. For a full summary of the history of abortion law in America, I would refer you to two excellent segments from the PBS Newshour in the last week: https://www.pbs.org/newshour/show/exploring-the-complicated-history-of-abortion-in-the-united-states https://www.pbs.org/newshour/show/lawyer-in-a-landmark-abortion-rights-case-discusses-a-potential-roe-reversal

Many people, specifically conservatives who tend toward the anti-abortion side of the issue, will say that Roe must be overturned because it was “wrongly decided.” This is because in 1973, the argument that led 7 of the 9 justices on the Supreme Court to decide for a woman’s right to choose was based on the 14th Amendment to the Constitution, specifically the due process clause. In short, this clause states: “…nor shall any State deprive any person of life, liberty, or property, without due process of law,” protecting people from state laws that deprive their residents of life or liberty. As there is the implied right to privacy in this clause, these are the concepts we typically hear about related to abortion.

From Wikipedia:

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental “right to privacy” that protects a pregnant woman’s liberty to choose whether to have an abortion. This right is not absolute, and must be balanced against the government’s interests in protecting women’s health and protecting prenatal life. Texas’s statutes making it a crime to procure an abortion violated this right.

https://en.m.wikipedia.org/wiki/Roe_v._Wade

So what if the conservatives are right? They do not have the worst argument, given that the state could claim an interest in building its citizenry through birth of new citizens. I’m not saying I agree with this, but it is at least a plausible argument. Maybe the argument originally made in Roe v Wade was wrong on its face. There is a better argument, in my estimation.

Abortion is legal up to the point of viability based on the 1st Amendment, nevermind the 14th.

According to the Cornell Law School:

The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.

https://www.law.cornell.edu/wex/Establishment_Clause

The anti-abortion crowd’s best argument, the one they think cannot be refuted, is based on the “fact” that as soon as a human sperm fertilizes a human egg, that collection of rapidly dividing cells is equivalent to a human being. This is NOT a commonly held belief outside of conservative Christian circles and other conservative religious ideologies. There is no legal basis to support this argument. All constitutional references to rights and responsibilities of the citizenry refer to “natural born” citizens, or naturalized citizens. There is no reference to “pre-born citizens.” When you have a child, you get a birth certificate, a social security card and all other government documents proving that child exists. These are not issued prior to a child’s birth because legally, that child does not exist as a separate entity until they are born. As birth occurs when the fetus is able to survive on its own outside the womb, and not before, placing any abortion restrictions on a woman prior to fetal viability is dubious, at best. In the eyes of the law, a person cannot be a person until they have been born, full-stop.

If this were to change, we would have to recycle social security numbers MUCH more quickly, considering the number of miscarriages occur in the US annually. Would you expect pregnant women to claim another dependent on their taxes, prior to the birth of their child? Census/population numbers would become much more volatile, and many other government records would be much more complicated to maintain. If “fetal personhood” becomes law in any capacity, it would require a constitutional amendment just to correct EVERY instance of relevant text. This will not be happening.

Just as there are religious sects in this country that speak of the sanctity of life, as soon as two cells meet, prior to implantation of that embryo into the uterus, there are plenty of other religious sects that believe precisely the opposite, allowing, respecting, even valuing the prospective mother’s life and liberty above the collection of cells found in her womb. For the government at any level (local, state or federal) to outlaw abortion based on the assumption that life begins at conception, is precisely equivalent to unduly favoring one religion over another or preferring religion over non-religion.

The US Constitution is a wonderful and quite imperfect document. It was written by a great number of white men, all “elite” in their day. There was no way they could have looked into the future to see how their words would be used, in and out of context, to justify some of the more horrible injustices and atrocities, particularly toward Black and Native American populations, as well as toward women. But the one thing that was right on the money is that the document is modifiable; it can be changed. The Bill of Rights represented only the first 10 Amendments and there have been more and there will be more. But it is the 1st Amendment, specifically, that leads me to my personal understanding that no state can pass a law forcing the establishment of a religion and that is precisely what is happening here. Since this will undoubtedly need to be litigated again, and again, and again on into the future, I am hoping someone will pick up this heavier proverbial sword to put a final word on this issue once and for all.

2 thoughts on “Abortion is Legal, Period, End of Story, and Here’s How

  1. Julie Ann

    Well written and on-the-money, Jessica. I especially liked your summation, “But it is the 1st Amendment, specifically, that leads me to my personal understanding that no state can pass a law forcing the establishment of a religion and that is precisely what is happening here.” Agreed whole-heartedly. And as long as the first amendment isn’t modified over this, we should be good. Let’s hope. Scary times we’re living in.

    Like

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