Among the divisive issues in the U.S., abortion sits near the top.
For nearly half a century, Roe v. Wade protected a woman’s right to an abortion before “viability”. In 2022 Dobbs v. Jackson upended this right by overturning Roe.
Whatever your views on abortion, we can’t escape the possibility that Roe was wrongly decided from a legal standpoint.
In Roe the Supreme Court of the United States (SCOTUS) held that the right to abortion was protected by the U.S. Constitution.
But no right to abortion appears in the Constitution.
Nearly 20 years after Roe, SCOTUS decided another case, Planned Parenthood of Southeastern Pa. v. Casey.
Casey upheld Roe based on the premise that abortion was a “liberty” guaranteed under the 14th Amendment to the U.S. Constitution.
Dobbs thoroughly explains why the right to an abortion is not a “liberty” protected under the 14th Amendment.
While the decision is a bit more complex, the long and short of it is that abortion is not a protected “liberty” interest because it is not a right:
(1) expressly guaranteed under the first eight Amendments (in contrast to the First Amendment’s right to free speech, for instance) or (2) steeped in our Nation’s history and tradition.