Overview

Opponents of abortions rights often feel secure in the belief that the US Constitution remains silent on such rights. An examination of the document finds otherwise, with six amendments laying out specific guarantees that speak directly to the questions involved.

There is no source of legitimate argument that cannot be used in strong support of abortion rights, including the US Constitution itself.

Reading Time: 13 minutes

I am a cis woman who will probably never have an unplanned pregnancy. I’m asexual (ace). While some ace folk do have sex lives, for me and my body, barring an assault, an unplanned pregnancy is not in the cards. 

But empathy is something I have in abundance.

As a child, I had a well-developed sense of fairness, as well as an analytical way of thinking. This led me as a teen to reject Church dogma when I realized that pre-contact Indigenous peoples may have ended up in hell by being born at the wrong time. These sensibilities made me want to be an ally, to support the equality and human rights of marginalized persons, and to try to understand how persons could support the arguments that anti-equality movements make, even though I disagree. 

I came to identify as an intersectional feminist, LGBTQ2 ally, and reproductive justice supporter long before I recognized that I was asexual. My experiences scrutinizing arguments, both for and against abortion rights, led me to develop my own novel ethical and constitutional framework for understanding abortion rights. Due to my interest, I follow abortion cases that come before the US Supreme Court and listened to oral arguments for a pivotal case in December 2021: Dobbs v. Jackson Women’s Health Organization. I wanted to hear the questions the Justices so I could get insights into their thinking and consider how my novel framework would hold up.

There were two main lines of questioning in Dobbs. Justice Barrett, responding to attorney Julie Rikelman’s argument against Mississippi’s 15-week abortion ban, made this clear: “But that’s stare decisis. I’m asking as a matter of first principles.”

First principles. Favored mostly by conservatives, first principles (or originalism) takes the US Constitution in its original meaning as the sole, sacrosanct foundation of all American jurisprudence. There are other ways to support legal decisions, including stare decisis (precedent). But when you’re trying to influence the thinking of an originalist, as Ms. Rikelman found, it’s best to speak the language of first principles.

Fortunately there are sound arguments based on first principles supporting abortion access on both ethical and constitutional grounds. To explain the ethical grounds, the relevant bodily rights need to be distinguished down to their most basic components:

  • Patient autonomy – the right to seek to end one’s own harming medical conditions as effectively as medical knowledge allows, or to mitigate such conditions’ harms, when ending it is medically impossible.
  • Bodily autonomy – the right to withhold or end bodily contact from different humans in the reasonable and timely ways presently available to oneself. If and when only such ways are lethal, it is still one’s right to choose whether to proceed.

Abortions represent the exercise of both of those rights simultaneously. Before viability, abortions are the only reasonable and timely way for persons who do not want to continue their pregnancy to both (a) preclude various medical harms involved in continuing the pregnancy, and (b) become bodily separate from a human embryo or fetus. Outside of pregnancy, these are not controversial, and most people would see them as fundamental rights. If a law-abiding and consent-capable person wants to remain or become bodily separate, it is supported, even if force is required. Even if a different human being that a person is bodily separating from has equal fundamental or constitutional rights of their own. No person intrinsically owes others shared access to their body. 

With these two principles in mind, let’s examine how these arguments hold up in the context of six constitutional amendments.

First Amendment: Freedom of speech is a bodily right

Constitutional amendments about individuals’ liberty rights often implicitly touch on bodily rights, as everything each of us does in our lives requires using our own bodies. How does one have freedom of speech without freedom to use their vocal cords to speak, their hands to write or type or sign, or their whole body for interpretative dance if they wish?

The First Amendment also recognizes religious freedom. There are religions and sects that permit abortions. The secular equivalent to freedom of religion would be freedom of conscience. To someone who sincerely holds an ethical viewpoint, that distinction is without a difference. The similarities ought not be hand-waived away when 29% of Americans fall under the “nones” category for religious affiliation. 

Not all actions or decisions that we consider unethical should be made criminal.

Not all actions or decisions that we consider unethical should be made criminal. Some choices considered unethical in a given context are fully within one’s rights as a citizen. Governments should not criminalize blasphemy, for example, eating pork or meat, or having sex outside marriage, simply because these are considered unethical in certain contexts. When it comes to which humans an individual is choosing to withhold or end bodily contact from, or what health care they seek, the conscience of the individual in a free society ought to be paramount over the conscience of governments. Having those rights quashed by others denies individuals their bodily security and the basic human dignity that goes with it. 

Fourth Amendment: Right to bodily security

The Fourth Amendment guarantees the “right of people to be secure in their persons, houses, papers, and effects.” Both first principles fit well under the words “secure in their persons.” The term is generally understood to mean that the US, the states, and their agents are restrained by law from arbitrary use of force or obstruction to interfere with persons’ bodies.

Abortion bans make the most basic bodily rights a crime.

Abortion bans make the most basic bodily rights a crime. It is anti-equality. It uniquely singles out and subordinates pregnant persons, among all persons that are both law-abiding and consent-capable, to be legally mandated to endure violations of their patient and bodily autonomy rights, continuously, for months on end—or they, and those that facilitated their abortion, can be treated as criminals.

America has, by legal fiat or omission, allowed some people to violate the bodily rights of law-abiding, consent-capable persons. Slavery is one example. What about some others?

All states implicitly legally permitted husbands to sexually assault their wives until 1974 to 1994 (depending on the state). Until recently, it also seems that no state recognized victims of sexual assault by women.

Child marriage is still legal in many states—in some, even before that state’s age of consent. These child brides and grooms cannot initiate a divorce until they are 18. Some states still treat marital rapes differently from other rapes, and states for which their legal definition of sexual assault still requires more than non-consent to sexual contact. Besides involving sexualized body parts, the legal definition of sexual assault against persons capable of substantive consent should not have a different legal bar to clear than non-sexual assaults to be considered unlawful.

That these laws existed or exist does not mean they are constitutional. One of the many difficulties in challenging the constitutionality of such harmful laws is finding a willing plaintiff who has been impacted by these laws, and endured the related trauma, and is willing to undertake a public legal battle that will take years with no guarantee of success.

Fifth Amendment: Bodily liberty, unlike property, is not there for the taking

While in the Fourth Amendment we saw security of one’s person and one’s property treated as essentially interchangeable, there is a difference between the treatment of liberty rights and property rights in the Fifth Amendment. It concludes: “nor shall any person be […] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The last part, italicized, is called “the takings clause.” So the government can, after due process, forcibly take private property for public use, if they adequately compensate the owners. But no such legal right is granted to the government regarding persons’ life or liberty rights. 

If the court overturns Roe or Casey this year, they’ll have given greater deference to property rights than to bodily rights.

If the court overturns Roe or Casey this year, they’ll have given greater deference to property rights than to bodily rights.

Just last year, in their decision Cedar Point Nursery v. Hassid, the court was strenuously objecting to a law that allowed union organizers 30 minutes a day to enter the premises of agricultural businesses to educate marginalized workers on lunch breaks of their labor rights. The court waxed on and on about the takings clause in legal jargon, noting that “the right to exclude is ‘a fundamental element of the property right.’” They wrote that “the right to exclude is not an empty formality that can be modified at the government’s pleasure”. They stated that it didn’t matter whether quashing this right to exclude was permanent or temporary, or whether this government action “achieves an important public benefit or has only minimal economic impact on the owner”. In their conclusion they wrote, without any noticeable sense of irony or self-awareness, that “This Court agrees, having noted that protection of property rights is ‘necessary to preserve freedom’ and ‘empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.’”

All the conservative Justices were in the 6-3 majority for this decision. Where is their energy and sentiment for the “right to exclude” when it comes to liberty bodily rights in abortion cases? Chief Justice Roberts, who wrote this decision, never met an abortion restriction he voted to overturn. What is up with that?

Ninth Amendment: The Constitution has unnamed rights, and abortion is rooted in the nation’s histories, tradition, and practices

A control-F search is not constitutional analysis. The Ninth Amendment notes that rights not specifically named in the Constitution may still be constitutional rights. There are legal conservatives who hold that for an unnamed right to be protected by the Ninth Amendment, or the Constitution more broadly, the right has to be deeply rooted in the nation’s history, traditions, and practices. 

While that position is not compelling to me, and the rest of my argumentation stands fully on its own, let’s address that position.

Legal conservatives often brush aside the inconvenient fact that under decades of US common law, abortions were legal to the point of fetal “quickening,” when the fetus is felt to move (about 16-20 weeks into pregnancy). Bans on pre-quickening abortions appeared later, and some were classified as more minor offenses (misdemeanors), than post-quickening abortions. The 1873 Comstock Act banned using the US Postal Service to send contraceptives, abortifacients, porn, sex toys, or even related educational material. States followed this example. If contraceptives and abortifacients were banned before Comstock, they clearly existed before Comstock.

Under decades of US common law, abortions were legal to the point of fetal “quickening,” when the fetus is felt to move (16-20 weeks).

All historical representations are partial in scope. When groups center the history of those closer to power, they leave out practices of arbitrarily-marginalized groups. Does this suppression justify the continued deprivation of their rights to their practices? Some groups’ practices were criminalized, such as those of Indigenous nations, groups enslaved, and LGBTQ2 communities. All these groups existed before and during all of US history. Before modern medicine, folk healers, “wise women,” and midwives who knew plant-based medicines provided most health care. At the time, they had sounder medical practices than the men starting to take over reproductive health care. Midwives had practices such as hand-washing with hot clean water before touching persons giving birth. The absence of handwashing practices among male doctors in the 1800s caused a dramatic increase in puerperal fever and maternal deaths in their patients giving birth. Folk healers and midwives knew of, and shared, plant-based contraceptives and abortifacients. The pregnable persons in their communities had historical practices of seeking and getting these from them, to prevent or end unsafe or unwanted pregnancies.

This nation has deeply rooted practices of considering persons who are pregnable, of a disfavored ethnicity, LGBTQ2, or unpropertied, as less than full and equal citizens. Witch trials, religious persecutions, mass migration, enslavement, and colonialism all harmed the ability of these persons and their communities to continue their historical and traditional practices freely. That some marginalized groups couldn’t continue their practices fully or openly enough to make it into standard history books is not a reflection on them, but on those that made it unsafe for them to do so. We do a disservice if we proclaim that the customary or legal practices of those who were, or are, in power are the practices that count and deserve protection more under a constitution. It is anti-pluralism, and faux equality. 

Thirteenth Amendment: Involuntary servitude is at odds with the bodily right to exclude

The Thirteenth Amendment, passed in 1865, was the first of three Reconstruction amendments, and the one that banned involuntary servitude and slavery for non-criminals. We should not forget that during chattal slavery many enslaved persons were sexually assaulted so that their bodies would deliver legally enslaveable infants to human traffickers who had legal immunity. Some resisted, using herbal remedies, and other more dangerous methods, to induce abortions. As history after 1865 shows, with lynchings, forced sterilizations, the contraceptive trials in Puerto Rico, the forty-year Tuskegee study, and present-day medical racism and police brutality, the bodily autonomy of Black and brown persons still remains conditional.

Coerced reproduction was essential to maintain the practice of enslaving persons in the US. It was one aspect of the numerous harms caused by the various practices around chattal slavery. I do not intend to compare the depravities of chattal slavery with how persons’ bodily rights are violated by abortion bans; a one-on-one comparison would not be sensible. I would like to share my reasoning for how the thirteenth amendment would be senseless without a bodily right to withhold or end bodily contact.

There is no ethically or legally enforceable duty involving bodily contact prior to a person substantively consenting to such a duty. The Thirteenth Amendment implicitly holds that position even for labor that does NOT involve bodily contact, and so endorses the concept that the freedom to withhold or concur consent is essential for liberty rights. Non-consent is the default setting, and consent is only present as long as consent is present. For law-abiding consent-capable persons to be bodily touched, their consent ethically needs to be prior, informed, free, specific, explicit, affirmative, and ongoing.

There is no ethically or legally enforceable duty involving bodily contact prior to a person substantively consenting to such a duty.

One belief that the anti-abortion movement seems to think is enforceable is the idea that pregnant persons are parents, and therefore have a duty of care to continue gestating. This is really just a sneaky way for them to make an emotional appeal to our cultural veneration of sacrificial motherhood, and to ad-hominem-y malign persons who have abortions as unmotherly, to try to justify quashing their equal rights. Sixty percent of persons seeking abortions already have kids, and most of the rest will go on to have kids when they are ready and able, or at least willing. The duties which have standards of care that involve bodily contact must be substantively consented to first. It is unconstitutional for the state to mandate duties involving bodily contact, or to obstruct or criminalize persons who decline or reject consenting to such. For the state to do either is a way of imposing a kind of involuntary servitude. Unplanned pregnancies are unplanned; the requirements of substantive consent to a duty of care involving bodily contact have not been met in multiple ways.

A third party is never the arbiter of what a person is presently consenting to. We should believe people when they communicate that they are not consenting to what is presently happening regarding their own bodies. To oppose and not recognize their non-consent is otherizing and disgraceful. We should not support third party’s obstruction of persons’ efforts to exercise their patient and bodily autonomy rights. To not oppose, or to be “neutral” towards, such obstruction is an odious choice, and one that demeans the status of persons whose patient and bodily autonomy is being obstructed. Why should people whose exercise of non-consent and such rights are being obstructed feel that those obstructors, or “moderates” who watch or look away, are trustworthily operating as good-faith actors when those folks say they love, support, or respect others whose rights they are opposing, or watching the erosion of?  

Fourteenth Amendment: Equal rights and protections under the law

Legal conservatives seem to ignore or brush aside the recognition of, and provisions for, social and legal equality, which was, and is, a revolutionary idea counter to historical and traditional practices which they insist courts adhere to. Practices that were rarely in accord with principles of equal rights and protections for all persons. Principles recognized now in the Constitution’s Fourteenth Amendment. This means that the Federal and State governments following the Constitution cannot arbitrarily discriminate when it comes to whose rights it respects, and they cannot quash the bodily autonomy right of consent-capable persons except as a legitimate part of due process for investigating, prosecuting, or sentencing of a known or suspected crime. When persons are arbitrarily treated as not having equal rights and protections, it signals to those persons, and their communities, that they are perceived to be lower-class citizens, consequently emboldening some to target them for the indignity of demeaning mistreatment. If one agrees with equal rights and agrees with the first two principles, one can not just apply them to cis men. One must apply them to cis women and trans persons also. And not just cis women and trans persons one feels compassion for, such as sexual assault survivors or those facing complicated maternal or fetal conditions, but also cis women and trans persons who make choices you don’t like or don’t agree with, or even offend you.

Based on this analysis, the Constitution of the United States does support abortion access, and abortion bans are unconstitutional undue government obtrusions upon multiple constitutional rights. The Constitution is not neutral on liberty bodily rights. A court upholding an abortion ban is a court repudiating each of these constitutional rights and amendments. 

The Constitution is not neutral on liberty bodily rights. A court upholding an abortion ban is a court repudiating each of these constitutional rights and amendments. 

New frameworks are essential to deepening our understanding of important matters and challenging old doctrines. It is clear that we need to be thoughtful about what choices we criminalize due to the impacts criminalization has on a person’s rights and well-being. We should further re-analyze the security of one’s person, and what it includes, and what choices should lead to the loss of those, and other, rights. What is the purpose of criminalizing choices made by persons about their own body? If the purported purpose is largely deterrence, is it really worth the harm we do by marginalizing and criminalizing the many who are not ‘deterred’? 

When it comes to patient autonomy, how do you have security of your person if you can’t access medicine that has been shown will keep you alive and well, or medical equipment like PPE or corrective lenses, to make the world more accessible to greatly improve your quality of life? The COVID-19 pandemic has made more apparent the importance, and systematic issues, of health care. The U.S. government had to be pushed to ensure that COVID vaccines would be provided free of cost. We’ve seen the fight over public health mandates, which push responsibility for mitigation of risk nearly entirely on individuals, including immunocompromised ones, yet no movement on systematic mitigation of risk, such as paid sick days, or improving indoor air quality. It won’t stop with abortion either. We’ve already seen that. An Ohio Judge compelled an unwilling hospital to administer ivermectin to a COVID patient. Texas has threatened to investigate and separate families if the parents support health care for their children’s gender dysphoria. Louisiana and Idaho recently tried to pass bills to make it a felony to provide trans-related health care to persons under the age of 19. 

If you are not experiencing gender dysphoria or an unwanted pregnancy, you currently have choices; those whose existence makes them targets of the state and these extremist right-wing movements are watching their safe choices dwindle. If your personal or professional life has any reasonable likelihood of bringing you into the orbit of persons vulnerable to attacks on these rights then you have the privilege of choice. The choice to consider and decide if you would be able and willing to do things to support them, and to hinder people or governments from bringing about real harm to them. No one can say that they personally will never know persons who are transgender, or pregnant and do not want to be. These are questions and decisions all Texans face right now, and other states’ residents may soon follow. It’s one we all face where medically vulnerable persons face greater threats due to governments’ weak policies around COVID-19. Access to sound health care is essential to one’s well-being, and to the security of one’s person, whether one has diabetes, gender dysphoria, or a pregnancy, at fifteen or fifty. Condescending ideologies of what is best for our lives and our bodies shows a profound lack of respect of human autonomy and freedom, and making those into law is unwarranted, disgraceful and insupportable.

There is no type of inquiry, no source of legitimate argument, and no perspective of history that cannot be used in strong support of abortion rights. Even the Constitution itself is easily and thoroughly in support of the rights the Supreme Court is currently working to eliminate. We must bring the case from every side.

Ruth Smith is a regular Canadian settler, unlearning colonialism one day at a time.