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56

Banning abortion is unconstitutional

56

Banning abortion is unconstitutional

Making abortion illegal is unconstitutional because it violates a woman’s fundamental rights under the 14th amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Privileges and immunities is referring to the fundamental rights within the constitution.

The relevant rights being violated are the right to equality and the right against exploitation.

Only if the fetus is granted personhood could you maybe pit its rights against the mothers and make a law banning abortion.

In the first sentence of the 14th amendment it states

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside

Seems to rule out the unborn for consideration under the constitution. Furthermore, the constitution lacks a definition for personhood leaving room to challenge the existence of any rights a fetus might have.

Even if the Supreme Court makes this a state issue it is still a constitutional issue.

If there are any US law experts out there please let me know if my logic is flawed. It seemed pretty straightforward to me but I’m also just a janitor with too much free time.

77 comments
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User avatar
level 1
· 7 hr. ago
Hank Hill Democrat

Pretty sure there was a big debate over this back in 1972

186
User avatar
level 1
· 6 hr. ago
South Asian Association for Regional Cooperation

abortion has been saved, someone send this to alito

170
User avatar
level 2

Alito in shambles

65
User avatar
level 2

He didn't realize it was unconstitutional smh. Rookie mistake

12
User avatar
level 1
· 7 hr. ago
I love Holland 🇳🇱🇳🇱🇳🇱♥😍🥰🌷

If only there was some sort of court to sort all this out!

83
User avatar
level 2
· 4 hr. ago
United Nations

They ruled on the justification in the original Roe vs Wade decision that was based on privacy. A stronger argument could be made under equal protection.

6
User avatar
level 2

They refuse to define personhood but I think even with the attempt to turn it over to the states it is unconstitutional based on how the constitution is written

-3
User avatar
level 1

Citizenship is not the same as personhood, foreign residents are considered people after all... and whether or not the 14th amendment applies to abortion is what the supreme court will decide over now.

21
User avatar
level 1

This excerpt seems to open the door that the unborn could be considered persons. It is only referring to a subset of humans that are born within the US as citizens. Humans born outside the US or unborn are not addressed.

I'd hardly say its a step forward to say the most basic rights in the constitution don't apply to non-citizens.

50
User avatar
level 2
· 4 hr. ago
European Union

I’m pretty sure murder of a non-Citizen is still a crime.

Not that abortion is murder, but that’s the logical conclusion of this argument that using the word “born” has this implication.

24
User avatar
level 2

Well, there is a right to citizenship to every person born on US soil. You could argue there is a state interest for the fetus to be born here, so therefore no pregnant person should be deported.

Hope you all are in for a bumpy ride.

3
User avatar
level 1
· 7 hr. ago
Martha Nussbaum

This seems like terrible constitutional analysis but I agree with the end goal so you go girl!

45
level 1

abortion ban = destroyed & owned 😎

3
level 2

You are pro choice because you support a woman’s right to privacy.

I am pro choice because I hate traffic.

We are not the same.

11
level 1
· 3 hr. ago · edited 3 hr. ago
NATO

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside

This isn't a very strong argument, no one claims that a fetus is a citizen. A fetus not being a citizen is irrelevant. foreigners aren't citizens but they still have rights.

If you want to argue that legally a fetus does not have any rights, you need another argument

5
level 1
· 2 hr. ago
Henry George

Your logic is flawed. The first sentence of the 14th Amendment defines who is a citizen, not who is a person. Immigrants who haven't been naturalized are people, and they have rights under the US constitution. See Wong Wing v. United States, 163 U.S. 228 (1896). There are constitutional arguments to be made, but this isn't it.

4
level 1

I'll leave the decision to the experts, they will surely know what to do with this issue

3
level 1
· 2 hr. ago
Austan Goolsbee

If y'all are going to make legal arguments can you at least have citations? I'll happily put them in the proper format if you send them to me.

3
level 1
· 1 hr. ago
Bisexual Pride

So, C section babies can go fuck themselves I guess.

3
level 1
· 4 hr. ago
Henry George

The right to equality is not being infringed. There’s no right to not be exploited.

Non-citizens have rights too.

Instead of trying to torture the constitution to get what you want, you will have to pass laws like every other country on earth.

5
level 1

The privileges and immunities clause means nothing post the slaughter house cases where to preserve the ideals of the Reconstruction when faced by a suit from white racists they stripped the clause of any meaning.

Per my Law and Policy graduate professor who is a practicing attorney.

2
level 2

Surely trying to site such a case today would fall flat though no? How would you even begin to use that as precedence today?

1
level 1

So, I preface this with the fact that I agree with you, banning abortion is unconstitutional. BUT you’ve got the wrong clause and the wrong amendment. The privileges and immunities clause has always been interpreted to protect your right to petition the government, use the internal waterways of the US, and a few other things that aren’t super relevant. In short, the right to abortion is a subset of the right to privacy — which is found in the “penumbra” of the Fifth Amendment.

If you want to find it in the 14th amendment, you’re better off looking at the due process clause than the privileges and immunities clause.

2
level 1
· 3 hr. ago
Jeff Bezos

Damn, someone should send this to the courts to decide!

2
level 1

Are animal cruelty laws unconstitutional, if hurting animals brings people liberty or happiness? They're certainly not persons born in the United States.

You can't just skip over the question of whether unborn humans deserve any moral consideration; that's at the core of the debate.

2
level 1
· 1 hr. ago · edited 11 min. ago

The Supreme Court interpreted the Privileges or Immunities Clause to be basically meaningless a long time ago. I think it's completely reasonable to say the Supreme Court got it wrong, and that clause should protect fundamental rights like abortion. One problem though is that the clause only applies to "citizens." Most liberals would argue that non-citizens within the jurisdiction of the US are also entitled to fundamental rights.

Under Planned Parenthood v. Casey (which, as of today, is still binding law...), abortion is a protected liberty under the 14th Amendment's Due Process Clause. That clause says that no state shall "deprive any person of life, liberty, or property, without due process of law."

The Supreme Court has held that protects a procedural right and a substantive right. The procedural right means: what hoops does the state have to jump through before it deprives you of your liberty? The substantive right means: what kind of reason does the state have to give before it deprives you of your liberty? Abortion is protected under substantive due process. So, under Casey, the state doesn't have a good enough reason to ban abortion early in pregnancy, but later in pregnancy (after the pregnancy is viable), the state has the power to ban abortions to protect fetal life (as long as there are exceptions for the health of the mother).

Ruth Bader Ginsburg argued that abortion is also protected under the 14th Amendment's Equal Protection Clause. The Supreme Court never adopted this view, but the argument is basically that abortion bans are a form of sex discrimination. They are motivated by sexism, and they single out pregnant women for especially harsh regulation and control of their bodies that would never apply to men.

2
level 1

The privileges and immunities clause has been neutered to only encompass a right to travel and access to waterways. So, probably not.

2
level 1

I'm not a legal scholar by any means but my understading is that fundamentally, there has been two fundamental concepts in play:

  1. Women's right to privacy in making medical decisions as opined by the Court which determined that such right was stipulated in the Fourteenth Amendment (the rights of the citizens shall not be abridged).

  2. Women's right to privacy is balanced against the State's obligation to defend her citizens - thus both Roe v Wade (trimester framework) and Planned Parenthood v Casey (fetal viability) attempted to draw the lines in which the government can choose to exercise to protect the otherwise viable fetus

My donkeybrain understanding is that the leaked draft opinion directly contradicts the first concept - that the Tenth Amendment (the rights not delegated through the Constitution shall belong to the individual States) should supercede the Fourthteenth Amendment - in that the individual citizens in the States can choose to make the abortion legal or illegal among their own States.

The concept of the constitutionality is not an objective fact as far as I can tell. The Court arrives at the opinions using the precedent framework to minimize the contradictions inherent in the human decision making. The leaked draft that overturns Roe v Wade is troubling in a sense that rather than respecting the precedent framework, it capriciously determines that whatever precent that's been respected for almost 50 years is wrong.

2
level 1
· 41 min. ago
Jeff Bezos

Right against exploitation? What the hell are you talking about dude?

2
level 1

“Privileges or immunities” is generally understood to operate within the context of citizens being able to live, travel between, receive due process in different states. The purpose being that States cannot discriminate/withhold fundamental rights of out of state citizens. Historically since the Slaughterhouse cases the Court has taken a pretty narrow view of the Clause. For example, in stare vs out of state tuition rates among many others

The more relevant part is the Due Process clause: nor shall any State deprive any person of life, liberty, or property, without due process of law;

The case of Roe is that pre-viability abortion constitutes a case of substantive due process whereby it is essentially an unenumerated fundamental right free from government interference.

In Washington v Glucksburg unenumerated rights were defined as rights which are “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.”

So does pre-viability abortion meet this standard?

Well unfortunately probably not. At the time of the 14th amendment several states had restrictions banning abortion and various abortion restrictions can be found going back centuries through English common law. While abortion did occur informally both legally and illegally, it is quite notable that there is pretty much no record of laws designed to protect abortion as a protected right. The case that pre-viability abortion historically has been a fundamental right free of state interference deeply rooted in American history simply doesn’t hold up historically.

The notion of Substantive Due Process has always been controversial due to its tendency to devolve towards legislating from the bench and this predates the right to privacy which enshrined Roe. Previous applications of substantive due process such as Dred Scott and the Lochner rulings have now been repudiated.

Ultimately, the strongest argument for Roe is mainly just Starie Decisis. The Constitutional grounding for Roe is well weak.

To the other points: the Fetus doesn’t need to have rights or personhood for the government to have a vested interest in it. “Government interest” in fetuses can be seen from stuff ranging from double homicide charges to reserved seats in public transportation for pregnant women. The fact that the Government has a vested interest in the fetus was never questioned in Roe and follows from fairly logical deductions. Whether the pregnant women has an unenumerated deeply rooted right to a pre-viability abortion which supersedes State interests is the central question of Roe. And that simply doesn’t follow in the pre 1973 history of the US

2
level 1

Petition for Amicus Brief: Banning Abortion is a violation of the 13th amendement.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

One of the ideas this was explicitly targeted at was the concept and practice of "chattel slavery", aka the full ownership of another persion as a commodity. Ownership over a person usually constitutes itself by forcibly taking ownership of that person's labour and the fruits thereof and/or forcibly taking ownership that person's body.

Due to the way that both aspects are inherently linked & subject to permanent influence by each other (as the impact of labour shapes the state of the body, and the state of the body in turn defines the labour capabilities), it must be concluded that forcibly taking ownership of another person's body against their will constitutes an act of enslavement in direct violation to section 1of the 13th amendement.

A fetus of a pregnant woman not only occupies & morphes the host's uterus, it also connects itself directly to the host's blood stream, siphoning & processing nutrients aswell as injecting substances back into the hosting blood stream without any control of the host herself.

Furthermore, the transformations done by the fetus to organs it comes in direct contact with trigger massive changes to the hormonal system of the host, which in term start a wide variety of transformative processes all across the host body completely outside of the host's control and solely to serve the fetus.

To argue, that said fetus possesses personhood only worsens the position for banning abortions, as that directly implies the transfer of ownership and control over all the host's body parts affected to another person without any consent requirement by the host.

The argument that protecting the survival of the fetus trumps any rights of the host to her own body is highly problematic. Should a person be forced to accept rape if defending themselves means harming the rapist? Because an act of self-defense that has any chance of being effective under such circumstance generally will be. Generally, rape has a similar pattern of direct physical impact except for a far shorter timespan & to a significantly lesser severity (psychological traumata cause by both are too large of a topic for me to be able to comparatively discuss them here, but their impact should be noted).

To set the standard that a stranger's survival nullifies a person's right to their own body has far reaching implications that go against broadly understood concepts of personal rights. For example, it would mean that the government has a duty to force kidney donations from compatible potential "donors" to save the life of the recepients in complete disregard of the "donor"'s consent. this would however run afowl of any common understanding of any personal rights retained to one's own body.

The abduction and harvesting for organs is an undeniably and thoroughly evil and unethical practice than can be observed in the criminal underworld on some place of the planet. It's practices run highly parallel to those that were used to abduct and enslave people for sale into chattel slavery in almost any way, the primary distinction being that the "product" is now sold in parts instead of a singular piece. If organ transplantations would have been medically viable during the times in which chattel slavery was both common and lawful in the US, there can be no doubt that chattel slave would have been harvested regularly for such express purpose.

The question of abortions is not in fact about a "right to kill", but about a right to remove the nonconsensual trespasser & thereby a right to restore the host's control over their own body. The death of the fetus this generally results in might be tragic, but is utimately the result of a purely self-defense action that is strictly necessitated to defend oneself.

To deny a person the basic rights to self-defense & force them to suffer lasting bodily harm for the sole purpose of avoiding an infringing trespasser to be harmed is a complete inversion of the responsibility concepts that are applied to any other right. The principle of non-aggression gets completely inverted to a principle of non-defense, in which the initiating act of aggression is not just allowed but expressly protected under maximum force to continue as long as it wants to.

The consquences of this inversion that intends to declare basic self-defense as homicide are immeasurably. In logical consequence it must be followed that if one were to refuse to host a homeless person in their house & said homeless person died in a snowstorm due to lack of shelter briefly after, the hosting person would be criminally responisble for homicide. If refusal to scraifice essential personal rights to save a stranger's life from threats you didn't cause constitutes homicide, there is no end to this in sight.

The exception stated in section 1 could in theory leave room for a "due process conviction to forced preganncy", however the 8th amendement clearly states (emphasis mine):

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

A forced pregnancy as a punitive measure should clearly fall into the category of cruel and unusual punishment.

In summary, for the reasons laid out in the beginning, any such practice that forcibly transfers control and ownership of a person's own body to a different person - be it via forced pregancy, organ theft or rape - severely violates the rights assured to the individual by the 13th amendement.

I'm not a law person & it's just a rough draft in need of a lot of polishing, but I believe that this line of argumentdoes have merit.

9
level 2
· 4 hr. ago
Norman Borlaug

This argument has been used and found lacking, although not sure why.

Also worth pointing out that this line of reasoning only gives you the right to stop allowing the fetus to use your body. It doesn’t give you the right to kill the fetus in order to remove it.

7
level 2
· 2 hr. ago · edited 2 hr. ago
John Rawls

if one were to refuse to host a homeless person in their house & said homeless person died...

This argument should be modified. We as a society have already decided that certain rights pertaining to bodily autonomy should be restricted, especially when it comes to parent-child relationships (if we are to consider a fetus a person). Kicking your toddler out of your house and having them die to the elements actually is considered murder. We're not Rothbard.

But yes, you are correct that organ donation is above and beyond what the majority thinks parents are obligated to do.

4
level 1
· 2 hr. ago
John Mill

You kinda just Yada Yada Yada over the whole fact that there is no mention of abortion or even anything similar in the constitution and kinda just say, well obviously abortion is so important that it has to be one of those privileges and immunities. But there is a very weak case for that. The entire justification for roe comes from the basic concepts you cite being excruciatingly milked from concepts of privacy that were excruciatingly milked out of places like the 4th amendment in the decade before Roe. I think it is totally consistent to think that (1) roe was a good thing and we should have that right and (2) the legal reasoning behind roe is an absolute abomination that any reasonable person who doesn't have motivated reasoning can easily see.

4
level 1

This analysis by Quinn Hillyer hits the nail on the head and I couldn’t agree more.

“Justice Samuel Alito’s draft decision in the Dobbs abortion case is a powerfully argued legal masterpiece throughout, but its central point is made in just 25 words on page 15.

To wit: “Until the latter part of the 20th Century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”

That is the indisputable reality of abortion jurisprudence, as Alito shows through exhaustive historical research and bracing logic. In both the Roe v. Wade decision in 1973 and Planned Parenthood v. Casey in 1992, the majority of justices essentially made up constitutional provisions from thin air. As Alito wrote, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

Yes, not even implicitly.

This has nothing to do with whether one’s policy preferences are “pro-life” or “pro-choice” or some mix of the two. This has everything to do with how our constitutional system is supposed to work. The Constitution’s list of rights and protections is explicit. Even if it is not exhaustive, it contains no grant of broad authority for justices to create whatever new, so-called “rights” their own sensibilities demand. In addition to rights expressly listed in the Constitution, the only other ones that are inviolable are those (quoting prior Supreme Court cases) “deeply rooted in this nation’s history and tradition” and “implicit in the [very] concept of ordered liberty.”

And yes, those strictures are meaningful, rather than open to broad interpretation. There are legitimate methods of historical and legal inquiry to determine which “rights” are both deeply rooted and obviously implicit. (For a great example of such methodology published within the past year, read The Original Meaning of the Fourteenth Amendment by Randy Barnett and Evan Bernick.) Alito even quotes a series of liberal, pro-choice constitutional luminaries who have acknowledged that Roe identified no such roots and that it essentially invented constitutional provisions from the ether.

The good news for those seeking other, nonconstitutional legal protections is that the bulk of the Constitution is not dedicated to listing rights but to creating a system whereby representative, republican processes allow the people themselves to determine how the law works in their communities. Rights or privileges that do not obviously predate society itself are not always so widely recognized as to be enshrined by the people in their Constitution. Yet these can still be protected through state and local laws.

Quoting the late Justice Antonin Scalia, Alito writes: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

As Alito demonstrates at great length, Roe was so poorly reasoned that subsequent “pro-choice” Supreme Court decisions have jettisoned all of it — both its reasoning and its practical applications. All that remains is a shell around the idea that abortion is a right. But even in reaffirming that right, Casey created an entirely new justification for it. Later court rulings further modified (and in many cases abandoned) Casey’s arguments, too.

In sum, not even those who say abortion is a constitutional right can settle among themselves why it is such a right or what provisions of the Constitution actually protect it. That’s because, as written, it manifestly does not.

“Roe was on a collision course with the Constitution from the day it was decided,” Alito wrote, “and Casey perpetuated its errors.”

If the court majority finalizes something like Alito’s draft decision, then the Constitution, rather than Roe and Casey, will happily survive that collision.”

Source: https://www.washingtonexaminer.com/restoring-america/equality-not-elitism/alitos-draft-abortion-decision-is-brilliantly-persuasive

4
level 2

The real problem we have is that SCOTUS decisions whether legally correct or not were creating rules that reflected the people's will when congress doesn't do that anymore. It was at worst basically a patch to a broken system not working correctly. Now the patch is gone, so we're back to a country with laws that don't represent the people. Saying, "oh just change the laws" won't work, because the laws in America no longer correspond to the people's will

1
level 1
· 4 hr. ago
Jeff Bezos

Stare Decisis be damned

also sprinkle in some Constitutional Avoidance for the hell of it.

The SC is and will always be a MEME institution.

1
level 1

Something tells me you think “common sense” gun control is perfectly constitutional.

1
level 2

No I think the terms “well regulated” are used in the second amendment though

2
level 1
· 4 hr. ago · edited 4 hr. ago
United Nations

I like the argument. I also believe the equal protection clause could be used to justify the constitutionality of a federal law superseding state bans on abortion from the angle of men not having any legal restrictions on reproductive health so it being illegal to place restrictions on women's reproductive health.

There's possibly also an argument under the 4th amendment from the angle of bodily autonomy against unreasonable searches and seizures to prevent the state from interfering with women's reproductive health. That could also be used against state laws popping up trying to ban transgender conversion.

I'm sure the legal scholars are all drawing up plenty of compelling strategies, the fight for this is far from over.

1
level 1
· 3 hr. ago
John Locke

Additionally, the belief that the rights of a fetus should outweigh those of the mother is fundamentally religious - only certain Christian sects believe this. Other major religions like Judaism and Islam believe the mother should take precedence.

So right there you've got a 1st Amendment violation.

0
level 2

Additionally, the belief that the rights of a fetus should outweigh those of the mother is fundamentally religious

Does it not depend on the specific right though? The idea that the right to life of the fetus outweighs the right to life of the mother sounds like a fundamentally religious belief. The idea that the right to life of the fetus outweighs the right to bodily autonomy of the mother is a matter for serious ethical debate outside of religion. Even Roe V Wade acknowledges the government’s interest in protecting “prenatal life”.

4
level 1
· 2 hr. ago
YIMBY

The entirety of the draft opinion is dedicated to refuting this with “not uh”

No seriously. That’s basically the crux of the entire opinion- that the 14th amendment doesn’t apply. And since it doesn’t apply (according to Alito) your argument is moot.

1
level 1

Oh i see the answer now. Here me out. Because the babies aren’t born yet, they’re not citizens. This makes them illegal immigrants since they are on US soil. If we convince the GOP of this they will change their minds

1
level 1
1
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