In order to make decisions related to women’s bodies, the Supreme Court has cited Constitutional Amendments that both implicitly and explicitly guarantee the right to privacy in different aspects. The Constitution never outright states a right to privacy related to the body which has made the decisions for court justices in privacy-related cases and on what privacy entails incredibly ambiguous. The usage of the Constitution to defend bodily autonomy and interpret what privacy entails has differed by both specific justice and case.
While not all Amendments related to privacy are applicable in terms of rights to bodily autonomy, many have been used in court cases to defend other personal rights throughout history. The 1st Amendment has been used to protect both freedoms of religion but also the privacy of religious choice from others. The 3rd Amendment has been used to protect an individual’s privacy in the home as it makes the forced housing of soldiers illegal, and the 4th Amendment explicitly protects citizens from unreasonable searches & seizures.
Some Amendments have been used to protect both aspects of privacy related to the body and otherwise. Most commonly, the 5th, 9th, & 14th Amendments have been used to defend and protect rights to privacy related to the body and specifically, abortion rights.
5th Amendment
“No person shall be held to answer for a capital, or otherwise infamous crime…nor be deprived of life, liberty, or property, without due process of law.“
– U.S. Constitution
The 5th Amendment explicitly protects Americans from self-incrimination and therefore the disclosure of personal information is, in some cases, protected and this has been used to protect abortion in cases post-Roe where federal restrictions on abortion were found to violate the Due Process Clause. For example, in Harris v. McRae (1980), the Hyde Amendment, which limited the use of federal funds to pay for abortions through the Medicaid program was challenged based on the 5th Amendment, but the court found that the Hyde Amendment did not violate the Due Process Clause [1]. However, while the court maintained that states using Medicaid funding did not have to fund medically necessary abortions, the majority did reaffirm the Roe decision by stating that the government may not “place obstacles in the path of a woman’s exercise of her freedom of choice” [2]. Even in cases where the Supreme Court disagreed with certain conditions related to abortion rights, the 5th Amendment was still cited as a protection against the removal of a women’s right to choose.
9th Amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
– U.S. Constitution
The 9th Amendment protects individuals from government infringement on their rights even if said rights are not explicitly stated elsewhere in the Constitution and it has been used in the past by the Supreme Court to defend citizens’ rights to privacy. After the Supreme Court decision that the Constitution did not protect the right to abortion in Dobbs v. Jackson Women’s Health Organization (2022), many that criticized the decision cited the 9th Amendment [3]. Many argued that the decision disregarded the 9th Amendment and that Griswold v. Connecticut (1965), which decided a ban on contraceptives violated the constitutional right to privacy correctly cited not only the 9th Amendment but also the 1st, 3rd, 4th, & 5th [3]. Together, in the written opinion, Justices Goldberg and Brennan as well as Chief Warren stated that “the right to privacy was embodied in ‘the language and history of the Ninth Amendment’” [3].
14th Amendment
“No state shall make or enforce any law which shall abridge privileges or immunities of citizens of the United States; nor shall any State deprive any persons of life, liberty, or property, without due process of law…”
– U.S. Constitution
Finally, the 14th Amendment has been used in a plethora of cases to prohibit states from enacting laws that infringe on bodily autonomy related to any rights protected in the first 13 Amendments. With the Roe v. Wade case, the 14th Amendment specifically was used to recognize abortion as a fundamental right [4]. In the majority opinion, abortion was protected as a fundamental liberty that allows individuals to make their own decisions about children and family-related issues [4]. This right allowed for the protection of reproductive autonomy under the 14th Amendment’s right to life, liberty, and equal protection. However, in the recent Dobbs v. Jackson Women’s Health Organization (2022) case, the Supreme Court found that there is no constitutional right to abortion thus overruling both Roe v. Wade and Planned Parenthood v. Casey where the court stated that “state deprivation of liberty” included, “the right to make family decisions and the right to physical autonomy” [5]. This decision came after over 100 years of precedent by the Court that the 14th Amendment protected a woman’s right to privacy related to family, marriage, and childbirth [5].
While the Supreme Court may have ruled against a women’s right to abortion and thus effectively redacted the use of these Amendments as Constitutional protection of bodily autonomy, the U.S. has still ratified international human rights treaties that outright protect reproductive privacy. The International Covenant on Civil and Political Rights (ICCPR), Convention Against Torture (CAT), and Convention on the Elimination of All Forms of Racial Discrimination (CERD) have all been ratified by the U.S. and all explicitly protect reproductive autonomy [4]. International human rights law has not been used in decision-making on reproductive rights by the Supreme Court, but past Justices such as Ruth Bader Ginsburg have turned to human rights treaties as citations for their choices publicly [4]. While direct enforcement of these treaties against U.S. Courts is not possible, it is clear that the removal of reproductive rights protections is a direct violation, and we may see these treaties used to defend bodily autonomy by future justices.
Throughout our lifetimes we have seen the way that abortion and reproductive rights have been remembered change both societally and legally. Individual justices hearing the same case have even remembered the impacts of abortion rights differently because of the personal significance and memories surrounding such a controversial topic and thus they themselves have acted as vessels of memory for the abortion debate with each case heard and each ruling overturned. While only the cultural memory of Roe and its impacts remain, it is clear the issue will long be remembered, whether positively or negatively even if these memories differ between individuals based on their upbringing, political opinions, or other identifying factors. These memories will be constantly evolving as new decisions are heard and old decisions are reinforced or overturned. With the vagueness of Constitutional protections for abortion rights, there is no clear prediction as to what the future holds for women’s rights post-Roe, but one thing is clear, the memory of Roe has not and will not be forgotten anytime soon.
– Grace Lena
Work Cited:
[1] Legal Information Institute. “Amdt5.4.6.9.2 Right to an Abortion.” Cornell Law School (n.d.). https://www.law.cornell.edu/constitution-conan/amendment-5/right-to-an-abortion.
[2] Justia. “Harris v. McRae, 448 U.S. 297 (1980).” Supreme Justia (n.d.). https://supreme.justia.com/cases/federal/us/448/297/#tab-opinion-1953689.
[3] Watkins Jr., William. “Left Libertarians, Dobbs, and the Ninth Amendment.” Independent Institute (November 17, 2022). https://www.independent.org/news/article.asp?id=14346#_ftn25.
[4] Center for Reproductive Rights. “Constitutional Protection for the Right to Abortion: From Roe to Casey to Whole Woman’s Health.” Center for Reproductive Rights (n.d.). https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/factsheets/Constitutional-Protection-for-the-Right-to-Abortion-Fact-Sheet2.pdf.
[5] Center for Reproductive Rights. “The Constitutional Right to Reproductive Autonomy: Realizing the Promise of the 14th Amendment.” Center for Reproductive Rights (n.d.). https://reproductiverights.org/wp-content/uploads/2022/07/Final-14th-Amendment-Report-7.26.22.pdf.
[6] Kilgore, Ed. “Kansas Supreme Court Recognizes State Constitutional Right to an Abortion.” Intelligencer (April 26, 2019). https://nymag.com/intelligencer/2019/04/kansas-recognizes-state-constitutional-right-to-abortion.html