Protecting Abortion Rights Under the First Amendment

Blog Post | 110 KY. L. J. ONLINE | March 15, 2022

Protecting Abortion Rights Under the First Amendment

By: Joshua Shelepak, Staff Editor, Vol. 110

The Supreme Court recognized a woman’s right to choose whether to terminate her pregnancy in the landmark case of Roe v. Wade.[1] The decision was grounded in the right to privacy.[2] The Court reaffirmed Roe in Planned Parenthood v. Casey, relying on the idea that abortion is a liberty protected by the Due Process Clause of the Fourteenth Amendment.[3] This term, the Court will decide the constitutionality of Mississippi’s abortion law, passed in 2018.[4] It is widely believed that the Court will uphold the law and might even overturn Roe.[5] This would be a mistake. Even if the Court got it wrong in Roe and Casey, Mississippi’s law is still unconstitutional under the First Amendment’s religion clauses.

In Roe, the Court used the trimester system to determine what regulations were permissible.[6] In the first trimester, any regulations at all are not allowed; in the second trimester, states can regulate the procedure to promote the health of the mother; in the third trimester, states could go so far as to ban the procedure entirely.[7] The Court upheld Roe in Casey, but replaced the trimester framework with the viability standard.[8] Before viability, a woman has a right to choose; states can, however, regulate before viability as long as the law’s “purpose or effect” does not “place a substantial obstacle” on a woman’s right to choose.[9]

It is against this backdrop that Mississippi passed their latest abortion law, called the Gestational Age Act. The law bans abortions after 15 weeks (which is prior to viability), with exceptions “in a medical emergency or in the case of a severe fetal abnormality.”[10] Mississippi is asking the Court to overturn Roe and Casey, and argues that their law “rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity.”[11]

While Mississippi argues that their abortion ban is meant to protect women’s health,[12] it will actually harm women. Mississippi characterizes abortion as a dangerous procedure, yet research has shown that women are around 14 times more likely to die from childbirth than from complications of an abortion.[13] Banning abortion, on the other hand, poses several health risks, not to mention the emotional burden of being forced to carry a pregnancy to term.[14]

In arguing that Roe and Casey should be overturned, Mississippi claims that the right to abortion is not a liberty that is protected under the Fourteenth Amendment.[15] To support their claim, Mississippi argues that the right to abortion is not rooted in history and that states have “a long tradition” of restricting it.[16] This claim is misleading at best. The Court in Roe explicitly acknowledged that criminal abortion laws “are of relatively recent vintage.”[17] In fact, when the Bill of Rights was written in 1791, abortion was legal in the United States.[18] Even if we assume that the Fourteenth Amendment does not protect a woman’s choice to have an abortion, we should find protection under the First Amendment’s religion clauses.[19] Mississippi argues that “[n]owhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life.”[20] The problem is that the question of fetal humanity is a moral and philosophical one, and people will answer that question differently based on their religious beliefs.[21] The Catholic view, for example, is different than the Jewish view.[22] If the Court were to accept Mississippi’s argument, they “would be taking governmental action to establish a belief that contradicts those who in the free exercise of their religion deny that belief.”[23] This would go against both the Free Exercise Clause and the Establishment Clause of the First Amendment. The Supreme Court should therefore continue to recognize the constitutional right of women to choose whether to end a pregnancy.

[1] Roe v. Wade, 410 U.S. 113, 164 (1973).

[2] Id. at 153.

[3] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).

[4] Pete Williams and Teaganne Finn, Supreme Court signals willingness to uphold abortion limits in Mississippi case, NBC News (Dec. 1, 2021, 2:35 PM), https://www.nbcnews.com/politics/supreme-court/supreme-court-set-dive-mississippi-abortion-case-challenging-roe-v-n1285114.

[5] See, e.g., Robert Barnes, Supreme Court seems inclined to uphold Mississippi abortion law that would undermine Roe v. Wade, Wash. Post (Dec. 1, 2021, 7:30 PM), https://www.washingtonpost.com/politics/courts_law/mississippi-abortion-case-supreme-court/2021/12/01/367004a6-52b4-11ec-9267-17ae3bde2f26_story.html.

[6] Roe, 410 U.S. at 163.

[7] Roe, 410 U.S. at 164.

[8] Casey, 505 U.S. at 870.

[9] Id. at 878. This is known as the “undue burden” standard. For an overview of the standard, see Ctr. for Reproductive Rights, The Undue Burden Standard After Whole Woman’s Health v. Hellerstedt (2018), available at https://reproductiverights.org/wp-content/uploads/2020/12/WWH-Undue-Burden-Report-07262018-Edit.pdf.

[10] Miss. Code Ann. § 41-41-191(4)(a) (West 2022).

[11] Brief for Petitioners at 5, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (July 22, 2021).

[12]Id. at 8.

[13] Genevra Pittman, Abortion safer than giving birth: study, Reuters (Jan. 23, 2012, 5:20 PM), https://www.reuters.com/article/us-abortion-idUSTRE80M2BS20120123.

[14] Paul Constant, How abortion bans widen the gender pay gap and diminish women's economic power, Insider (Feb. 26, 2022, 7:00 AM), https://www.businessinsider.com/how-legalizing-abortion-bans-could-impoverish-women-for-generations-2022-2.

[15] Brief for Petitioners, supra note 9, at 16.

[16] Id. at 12.

[17] Roe v. Wade, 410 U.S. 113, 129.

[18] Barbara Pfeffer Billauer, Abortion, Moral Law, and the First Amendment: The Conflict Between Fetal Rights & Freedom of Religion, 23 Wm. & Mary J. Women & L. 271, 293 (2017).

[19] See, e.g., Lloyd Steffen, Abortion rights should be protected under the First Amendment, Salon (Dec. 11, 2021, 7:00 AM), https://www.salon.com/2021/12/11/abortion-rights-should-be-protected-under-the-first-amendment/.

[20] Brief for Petitioners, supra note 9, at 17.

[21] Steffen, supra note 19.

[22] Billauer, supra note 18, at 330.

[23] Steffen, supra note 19.