Alabama abortion law stirs constitutionality debate among 2020 candidates
WASHINGTON, D.C. - Some 2020 Democratic presidential candidates are once again protesting the Alabama law that provides a near-total ban on abortion. In recent days, several candidates, including frontrunner and former Vice President Joe Biden and Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders, have said overturning Roe v. Wade is “unconstitutional.” Sanders tweeted Wednesday that “abortion is a constitutional right.”
Gillibrand has perhaps been the most vocal opponent of the new Alabama abortion law. This week she rallied pro-choice supporters during spoke during a roundtable event in Georgia, another state that recently passed strict abortion laws, known as a "heartbeat bill," which prohibits abortions after a fetus' heartbeat is detected.
“There is an all-out assault by the Republican Party across this nation to undermine women’s basic reproductive rights, basic civil rights, basic human rights with the intention – make no mistake – of overturning Roe v. Wade,” Gillibrand said. “I will help you lead this movement all across the country to restore women’s basic constitutional rights.”
That fierce opposition is now creating a bit of confusion about what is and is not a constitutional right, and that is where the legality and definition of a right becomes tricky. Unlike the freedom of religion or the right to bear arms in the Bill of Rights, there is no explicit line in the United States Constitution that legalizes abortion as a right. The ruling on legalized abortion comes from the 1973 U.S. Supreme Court case Roe v. Wade, which cited language in the Fourteenth Amendment, among other areas of the Constitution.
That means if the Alabama law gets to the U.S. Supreme Court, like many suspect will happen, the nine Justices will be reviewing the Fourteenth Amendment among other areas of the Constitution. That amendment contains language regarding due process and equal protections clause, and the implicit right to privacy. Those are the two main grounds on which Roe v. Wade was decided in 1973. More recently, the Court used the language of the Fourteenth Amendment to establish same-sex marriage in 2015.
Unlike freedom of religion which is explicitly stated in the Constitution, the future of legalized abortion in the U.S. essentially now relies on not only interpretation of the same Amendments from a new group of Justices, but also the precedent of Roe v. Wade.
Here’s an abridged look at what the Supreme Court’s majority opinion ruled on Roe v. Wade: "This right of privacy ... Founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action ... Is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
There is also no explicit right to privacy in the Constitution; often times, that issue has been interpreted by the Supreme Court and such interpretation was crucial in the Roe v. Wade decision. That interpretation has created an implicit right to privacy in certain instances.
The word “right” that several 2020 candidates are using means that abortion is protected under the Constitution because of Roe v. Wade similar to how privacy is protected under certain amendments. It exists, just not explicitly. That ambiguity is what could lead to a Supreme Court challenge.