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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Amending the Constitution Is the Best Option to Secure Abortion Rights

By Donald Scarinci, August 22 2022 1:01 am


Most Americans disagree with the U.S. Supreme Court’s decision overturning Roe v. Wade. Most also believe that abortions should be legal when the life or health of the mother is in danger, when the fetus has severe abnormalities with little or no life expectancy, and when pregnancy is the result of rape or incest. However, public support alone will not be enough to secure abortion rights.

Supreme Court Decision Reversing Roe

In Dobbs v. Jackson Women’s Health Organization, a divided Court upheld Mississippi’s controversial law banning virtually all abortions after the 15th week of pregnancy. But it went much further and overturned its landmark decisions in Roe v. Wade and Planned Parenthood v. Casey. In an opinion by Justice Samuel Alito, the majority held that the U.S. Constitution does not confer a right to abortion and therefore should be regulated by the states. “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” Justice Alito wrote. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

The Court’s conservative majority noted that the Constitution makes no express reference to a right to obtain an abortion. It went on to reject the existence of an implicit constitutional right, either as part of a right to privacy springing from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments or as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. In light of its conclusion, that procuring an abortion is not a fundamental constitutional right, the Court further held that the States may regulate abortion for legitimate reasons, which includes an asserted interest in “protecting the life of the unborn.”

Efforts to Reinstate Abortion Rights Via a Constitutional Amendment

Following the dramatic reversal of Roe, states across the country have begun enacting strict new abortion laws. Efforts to stop them have been met with legal challenges, but their success is uncertain as the outcome will rely on how courts apply the Dobbs decision. On the federal level, Congress has been unable to generate enough support for a legislative solution to enshrine abortion rights in federal law. Meanwhile, anti-abortion activists talk about passing federal legislation to prohibit abortion nation-wide.

The most difficult solution — amending the U.S. Constitution — is the only course of action that definitively ensures that abortion rights will no longer be subject to changing political tides. As discussed in a recent article, there are a few ways to amend the Constitution, but none of them is easy. Congress can propose a Constitutional amendment with a two-thirds majority vote in both the House of Representatives and the Senate. States can also petition Congress to call a constitutional convention, but only with the support of the legislatures of two-thirds of the states. In either case, a successful proposal must also be ratified by three-fourths of the States (38 of 50 States), either by the state legislature or a special convention.

Ironically, anti-abortion advocates unsuccessfully sought for decades to overturn Roe v. Wade through a Constitutional amendment. Abortion supporters will face a similar uphill battle given that the process requires support from both Republican lawmakers and Republican-held state legislatures. Nevertheless, despite the steep odds, history proves that it is not impossible.

Four of the twenty-seven amendments to the Constitution overturned prior Supreme Court decisions. The 14th Amendment, which outlawed slavery and required the states to provide equal protection of the laws, overturned Dred Scott v. Sanford, 60 U.S. 393 (1857), which held that blacks were inferior to whites. The 19th Amendment’s establishment of women’s voting rights reversed several cases, such as Minor v. Happersett, 88 U.S. 162 (1875), which ruled that the Constitution did not grant such a right. The 24th Amendment abolished poll taxes in response to the Supreme Court’s decision in Breedlove v. Suttles, 302 U.S. 277 (1937), holding that such taxes were legal. Finally, the 26th Amendment overruled the Supreme Court’s ruling in Oregon v. Mitchell, 400 U.S. 112 (1970), which had found that Congress could not lower the voting age from 21 to 18.

State Efforts to Protect Abortion Rights

Much like the federal Constitution, most state constitutions do not expressly address abortion. Exceptions include Mississippi, Alabama, West Virginia and Louisiana, which declare no right to abortion. Many states do explicitly include a right to privacy. Even in the absence of such clauses, abortion law challengers have filed lawsuits alleging that strict abortion laws still violate state constitutions.

Since the process to amend state constitutions is significantly easier than at the federal level, efforts are underway both to protect the right to an abortion and to eliminate it. In most states, when the legislature has proposed an amendment, only a simple majority of voters must approve it. 

This month, voters in the State of Kansas overwhelmingly rejected a proposed state constitutional amendment that would have denied any right to an abortion in Kansas. The outcome, in a traditionally red state, illustrates that the Dobbs decision may have shifted the landscape, with many more Americans ready to make their voices heard on abortion. Nonetheless, a federal constitutional amendment guaranteeing the right may be necessary.

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