Why Banning Abortion is Unconstitutional
Our Unalienable Rights Cannot be Forgotten
In the face of Dobbs v. Jackson Women’s Health Organization, otherwise known as the Mississippi abortion ban case, pro-choice advocates all across the nation have doubled down on their arguments for protecting the right to a safe abortion. A myriad of strong, valid arguments have been presented, with everything from protecting bodily autonomy to a fair question of when life truly begins. Unfortunately, though, it seems that many of these arguments fail to truly reach the ears of the other side, the side calling for an end to Roe v. Wade. However, one thing that both sides of the aisle value greatly is the Constitution, which grants American citizens the rights we hold so dear. Neither side wants to see an unconstitutional bill turn into a law because no one wants their rights to be violated and disregarded. The thing with abortion bans, though, is that they do directly violate the Constitution and some of America’s founding principles. Here’s just a few ways in which they do so.
Disregards Life, Liberty, and Pursuit of Happiness
The Declaration of Independence, one of the founding documents of the United States, states in its preamble that “all men are created equal” and that “they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Although not effectively enforced for many years after its conception, this passage states that all people are equal and that they all have the irrevocable right to live, be free, and pursue happiness with their lives. Under this founding principle, each and every American citizen should be equal in the eyes of the law, and no one should have rights that are not granted to another. Therefore, if fetuses are going to be treated as American citizens, this principle should fully extend to them as well, and they should have the exact same rights as every other citizen, no more, no less. As will be reiterated later on, this means that fetuses should not have the right to use another person’s body without that person’s explicit consent, which is what would occur if abortions were banned and women were forced to carry unwanted pregnancies to term. No other citizen has that right because it would directly violate the right to bodily autonomy that is associated with the right to liberty guaranteed both in the Declaration of Independence and the Constitution, which will be elaborated on later. Such blatant disregard for the document that practically created America is not only extremely disrespectful, but also unethical, as it is essentially turning a blind eye to one of the passages that guarantees that all American citizens will be treated as equals.
Opposes the 14th Amendment of the Constitution
Section 1 of the 14th amendment of the Constitution states: “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.” In other words, this amendment says that each and every United States citizen should have equal rights and protections under the law, and that those rights cannot be removed. Among these rights, specifically under the right to liberty, is the right to bodily autonomy, or the right to make decisions about what happens to your body, who can use it, for what purposes, and for how long. Bodily autonomy is based on consent, which can be revoked at any time by the person who initially gave it. The right to bodily autonomy, however, cannot be revoked. Because of this right, a pregnant person should have the ability to decide if and for how long a fetus can use her body, in the same way a person can decide whether or not to donate an organ to a transplant patient. The pregnant person cannot be forced to consent to keeping the pregnancy, and a person cannot be forced to consent to donating an organ because in neither case would it be true consent. Removing the right to bodily autonomy also violates the section of this amendment that guarantees equal protection of the laws. If a woman cannot decide if a fetus is allowed to use her body (because the decision was made for her), the fetus has been granted more rights than every other citizen because it now has the right to use another person’s body without that person’s consent. Not only does this violate basic human rights, but it also directly violates the Constitution.
Potentially Violates the 1st Amendment of the Constitution
Among other things, the 1st amendment of the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This amendment grants citizens the right to practice any religion they choose in any way they choose. Banning abortion without allowing a religious exemption violates this amendment as some religions, such as the Satanic Temple, for example, incorporate abortion into some ritual ceremonies. Continuing with the Satanic Temple example, this church practices an abortion ritual where consenting participants are able to get an abortion and have the opportunity to reflect and reaffirm their commitment to some of the core tenets of the religion. As stated before, an abortion ban without a religious exemption would violate the 1st amendment, as it would prevent citizens who are members of the Satanic Temple from practicing their religion as they see fit.
Claiming the Constitution Does Not Grant the Right to Abortion Ignores the 9th Amendment
The 9th amendment of the Constitution states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This means that our rights as American citizens are not necessarily limited to those found in the Constitution. Meaning that, although a right to abortion is not explicitly stated in the Constitution, any person carrying a child should still have a right to make medical decisions for their own body, regardless of whether or not it effects the other person or people using their body, that being the fetus. If that decision involves terminating a pregnancy, then that decision should still be respected, whether or not it is agreed with. A person should never lose the right to make decisions about what happens to their body, even when they become pregnant. A fetus does not own the mother’s body just because it exists inside of it, just a mother does not “own” the fetus. The two are separate entities, and because the fetus is using the mother’s body, the mother has a right to revoke, at any time, her consent to allow the fetus to continue to use it. Revoking this right from pregnant people opposes the human right to bodily autonomy, the preamble to the Declaration of Independence, and the 14th amendment of the Constitution, as well as ignores the rights granted to American citizens by the 9th amendment. Again, by revoking this right, the government would be granting a fetus the right to use another person’s body without that person’s consent, a right that no other citizen has. This, too, violates the Declaration of Independence and the 14th amendment, not to mention that it is also a human rights violation.
The right to abortion is an important, valuable right that is granted to every citizen under the Constitution. It’s perfectly acceptable to believe that abortions are unethical, but what’s not acceptable is attempting to undermine the Constitution in order to push a “pro-life” agenda. In the face of a landmark case, it’s crucial to acknowledge the dangers and risks associated with an abortion ban, not just to women, but to America as a whole.