Supreme Court Chips Away at 14th Amendment in Dobbs Ruling

In probably the most momentous decision pertaining to constitutional rights of the past half-century, the Supreme Court last year ruled that the women have no right to an abortion and overruled 50 years of precedent on this matter. In Dobbs v. Jackson Women’s Health Organization, the 6-3 conservative supermajority on the Supreme Court found that the text, history and precedent in the Constitution and the nation’s history precluded abortion from being deemed a constitutional right under the 14th Amendment. While this decision has already led to abortion being essentially banned in many states and over half of U.S. women of reproductive age now live in states that are hostile to abortion rights, the broad language of the ruling and dismissal of 14th Amendment considerations mean that there may be many other rights Americans take for granted that will soon be on the chopping block. The ruling also opens the door for other constitutional amendments to be used to argue for reproductive rights.

The 14th Amendment, Due Process and Equal Protection of the Law

The 14th Amendment was among the so-called Reconstruction Amendments or Civil War Amendments passed after the Civil War. Per Wikipedia: these amendments “intended to guarantee the freedom of the former slaves and grant certain civil rights to them and protect the former slaves and all citizens of the United States from discrimination. However, the promise of these amendments was eroded by state laws and federal court decisions throughout the late 19th century. They were not recognized until the Supreme Court decision in Brown v. Board of Education in 1954 and laws such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.”

The 1972 Roe v. Wade Supreme Court decision also relied heavily on the 14th Amendment’s Due Process Clause, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law. The 7-2 ruling in Roe interpreted the Due Process Clause as providing a fundamental right to privacy, thereby protecting a pregnant woman’s right to choose an abortion, with limits. In the Dobbs decision from last year that overruled Roe, the Court reinterpretated the 14th Amendment’s Due Process and Equal protection clauses as not providing the right to have an abortion.

Rights Must be “Deeply Rooted” in History

As previously discussed in this legal blog, in his majority opinion in Dobbs, Justice Alito claimed substantive due process rights must be “deeply rooted” in U.S. history and tradition and essential to the nation’s “scheme of ordered liberty,” but it is easy to see how any numbers of privacy rights we take for granted may not be viewed as “deeply rooted” in history, including the right to contraception, the right to consensual sexual relations among adults of the same gender, the right to interracial marriage, and the right to same-sex marriage. The Dobbs ruling essentially puts at-risk all substantive due process jurisprudence of the past 55+ years. Indeed, in his concurring opinion in the Dobbs decision, Senior Associate Justice Clarence Thomas called for “revisiting all of the Supreme Court’s prior decisions holding that unenumerated rights are protected by substantive due process.”

First Amendment Considerations

In addition to the legal limbo that privacy rights find themselves in in the wake of the Dobbs decision, some groups are arguing for the right to privacy from government intrusion, including the right to abortion, using the First Amendment’s Free Exercise and Establishment Clauses. Plaintiffs in a Missouri case are contending that not only is the right to an abortion a part of their faith, but that Christian lawmakers illegally used the legal system to enshrine their own particular religious beliefs into law when they banned abortion.

The late Supreme Court Justice John Paul Stevens had argued as much in various cases before the Supreme Court. John Vile, a professor of political science and dean of the Honors College at Middle Tennessee State University, contends that “Stevens’ primary argument was that because abortion laws rested on what he believed to be a theologically based belief that fetuses were human at conception, such laws constituted an unlawful establishment of religion. Others have argued that anti-abortion laws were part of an effort to enforce certain theologically based views of gender norms, typically attributed to the religious right.”

13th Amendment Considerations

A federal judge in Washington, D.C. has posited that the 13th Amendment may provide a constitutional right to access reproductive services, including an abortion. U.S. District Court Judge Colleen Kollar-Kotelly said “the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization concluded only that the 14th Amendment included no right to abortion but stopped short of definitively ruling out other aspects of the Constitution that might apply.”

Another one of the Reconstruction Amendments, the 13th Amendment states that “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.”

Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, has argued: “forced pregnancy’s violation of personal liberty is obvious. Restrictions on abortion also violate the amendment’s guarantee of equality, because forcing women to be mothers makes them into (what so much tradition defined them as) a servant caste, a group that, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves. (It is also pertinent that abortion restrictions disproportionately burden Black women.)”

While this may be a novel reading of the 13th Amendment, it is certainly an avenue some groups may choose to go down in this new reproductive rights landscape.

The Goal of the Universal Life Church

Each week, the Universal Life Church’s blog focuses on documenting the most noteworthy cases involving the required separation between church and state, and other constitutional rights. Many fear that the Supreme Court’s current majority could erode these constitutional rights. Our blog focuses on describing matters in a way that objectively examines both sides and which can be easily understood by readers.