Abortion, the Bill of Rights, and the Constitution

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APA
Agresti, J. D. (2011, December 6). Abortion, the Bill of Rights, and the Constitution. Retrieved from https://www.justfactsdaily.com/abortion-and-the-constitution
MLA
Agresti, James D. “Abortion, the Bill of Rights, and the Constitution.” Just Facts. 6 December 2011. Web. 14 April 2024.<https://www.justfactsdaily.com/abortion-and-the-constitution>.
Chicago (for footnotes)
James D. Agresti, “Abortion, the Bill of Rights, and the Constitution.” Just Facts. December 6, 2011. https://www.justfactsdaily.com/abortion-and-the-constitution.
Chicago (for bibliographies)
Agresti, James D. “Abortion, the Bill of Rights, and the Constitution.” Just Facts. December 6, 2011. https://www.justfactsdaily.com/abortion-and-the-constitution.

By James D. Agresti
December 6, 2011

Writing in the NJ Star Ledger, columnist Paul Mulshine asserts:

Any federal law banning abortion would be rooted in the same section of the Constitution now being challenged by conservatives in the suits against Obamacare: the Interstate Commerce Clause. Conservatives argue the original meaning of that clause permits Congress only to facilitate interstate commerce, not restrict it. If that’s true of Obamacare, then it’s true of abortion.

In fact, the Bill of Rights and the Fourteenth Amendment of the Constitution—which are both independent of the Interstate Commerce Clause—may entail and affirmatively require federal involvement in the issue of abortion.

The Fifth Amendment of the Constitution, which is part of the Bill of Rights, declares that “No person shall be … deprived of life, liberty, or property, without due process of law.” Likewise, the Fourteenth Amendment made this portion of the Fifth Amendment applicable to the states by explicitly affirming, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Constitutionally, the issue of abortion can be boiled down to whether or not the unborn fall under the Constitution’s definition of “any person.” During the oral arguments for Roe v Wade, Henry Wade, the attorney responsible for enforcing Texas’ abortion law, cited a fact that bears upon this question.

Wade argued that the only rational way to understand what the Constitution means by the word “person” was to go to “the teachings at the time the Constitution was framed.” Doing this, he quoted William Blackstone, who is described in Simon & Shuster’s New Millennium Encyclopedia as a “British jurist and legal scholar, whose work Commentaries on the Laws of England was used for more than a century as the foundation of all legal education in Great Britain and the U.S.” As Wade noted, in this work, Blackstone wrote that life is a “right” that “is inherent by nature in every individual, and exists even before the child is born.”

This fact does not completely settle the issue, but it does show that an originalist understanding of the Constitution is compatible with federal involvement in the issue of abortion. Furthermore, it implies that the Fifth and Fourteenth Amendments may actually compel federal involvement in this matter, just as they do in cases where anyone in this country is deprived of the individual liberties and rights recognized in the Bill of Rights.

For facts that bear upon the issue of when life begins, see Just Facts’ research on the issue of abortion, particularly the sections on Science and the Constitution. For critical insights about the Fourteenth Amendment and its purposes, listen to “Constricting the Bill of Rights” on Just Facts Radio.

  • December 15, 2011 at 8:37 AM
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    Maybe not based in fact, but here’s something many of us heard when we were children – back when we were perhaps innocent enough to take Dr. Seuss at his word: “A person is a person, no matter how small.”

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    • March 22, 2012 at 8:44 PM
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      i do agree that dr. suess taught uf the basic prinicples of life. why r we so hypocritical with what we teach our children?

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      • March 22, 2012 at 8:45 PM
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        i meant us not uf <3

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      • November 14, 2016 at 12:34 AM
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        The fact that you don’t use punctuation, capital letter, or full words really shows the arrogance that this topic is being argued by

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        • November 21, 2018 at 1:29 PM
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          Seriously? Taken the seriousness of the subject matter, you want to criticize punctuation?

          Reply
  • April 24, 2013 at 10:47 AM
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    I dont think that dr. susse was refeering to that in a childrents book

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  • August 20, 2013 at 12:51 PM
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    Completely fallacious argument. There is no basis for claiming a fetus is a “person” under the 5th or 14th Amendments. Judge Robert Bork, no liberal, stated, somewhat condescendingly, that those who argue in favor of the unborn as “persons” under the 5th and 14th Amendments to the Constitution, and therefore entitled to all the Constitution’s protections, belong to the “school of constitutional jurisprudence [where] if you want something passionately enough, it is guaranteed by the Constitution.” Additionally, you would have to count fetuses for census, determining representation in the House, etc. It’s absurd. Arguing that it is somehow ‘originalist’ is completely antithetical to what the Founders were actually doing- limiting federal governments. Moreover, there is no mention of the unborn anywhere in Blackstone, the Federalist papers, etc.

    Even if it did apply, they limit government action, not private. Thus, if not prohibited by law, it is legal. Which then gets into the real question of whether a state can pass such a law in light of individual liberties guaranteed by the Constitution. The Supreme Court has stated that they can, but with limitations.

    Arguing for federal involvement in abortion but against in healthcare represents either hypocrisy of the greatest sort or comparable ignorance of history and the law. One may be sympathetic and hostile to abortion without resorting to such logical gymnastics.

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    • December 26, 2015 at 4:38 PM
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      The truth lies within science. At the moment when a human sperm penetrates a human ovum, or egg, generally in the upper portion of the Fallopian Tube, a new entity comes into existence. “Zygote” is the name of the first cell formed at conception, the earliest developmental stage of the human embryo, followed by the “Morula” and “Blastocyst” stages.
      Is it human? Is it alive? Is it just a cell or is it an actual organism, a “being?” These are logical questions; let’s see….
      The zygote is composed of human DNA and other human molecules, so its nature is undeniably human and not some other species.
      The new human zygote has a genetic composition that is absolutely unique from itself, different from any other human that has ever existed, including that of its mother (this disproves the claim that what is involved in abortion is merely “a woman and her body”).
      This DNA includes a complete “design,” guiding not only early development but even hereditary attributes that will appear in childhood and adulthood, from hair and eye color to personality traits.
      It is also quite clear that the earliest human embryo is biologically alive. It fulfills the four criteria needed to establish biological life:

      metabolism, growth, reaction to stimuli, and reproduction.

      So…… is the human zygote merely a new kind of cell or is it a human organism; that is, a human being? Scientists define an organism as a complex structure of interdependent elements constituted to carry on the activities of life by separately-functioning but mutually dependent organs. The human zygote meets this definition with ease. Once formed, it initiates a complex sequence of events to ready it for continued development and growth:

      The zygote acts immediately and decisively to initiate a program of development that will, if uninterrupted by accident, disease, or external intervention, proceed seamlessly through formation of the definitive body, birth, childhood, adolescence, maturity, and aging, ending with death. This coordinated behavior is the very hallmark of an organism.

      By contrast, while a mere collection of human cells may carry on the activities of cellular life, it will not exhibit coordinated interactions directed towards a higher level of organization.

      So… the scientific evidence is quite plain: at the moment of fusion of human sperm and egg, a new entity comes into existence which is distinctly human, alive, and an individual organism – a living, and fully human, being.

      Reply
      • January 22, 2017 at 10:19 PM
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        A beautiful explanation of human life! Proving scientifically that the baby, is indeed, a human being from the moment of conception!
        Written in proper scientific terms but simple enough for almost everyone to understand! Thank you so much!

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      • March 4, 2018 at 1:04 PM
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        great explanation

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    • August 25, 2016 at 3:29 AM
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      OK if a fetus is not a person.

      What does a woman give birth to?

      And what species is a baby?

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    • November 3, 2020 at 11:28 AM
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      Let’s save the puppies and kill the children. That’s liberal reasoning at its finest.

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    • July 1, 2022 at 6:02 PM
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      The pro-abortion argument is not really if a fetus is viable, that ignores the main question, does the constitution address the issue, and it clearly does not. The government can take your life, liberty and property so long as they follow a fair process, or due process. This amendment cannot be stretched to support that abortion is a fundamental right, if it were than all of the states that had abortion laws after the constitution was ratified were violating the law for over a century.

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  • February 26, 2017 at 7:54 AM
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    This is personal opinion that everyone has to make this huge case fit their stance on murder or just a piece of garbage to go to the land fill.My question is how can the court pin a rap of vehicle manslaughter on a person for killing someone in a womb and yet say abortion is legal.That same mother could murder the baby in a clinic and no problem. It doesn’t add up ,think about it

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    • October 17, 2018 at 5:02 PM
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      It’s simple to see the hypocrisy if someone wants to. No amount of legalese can get around it. “It” is either a person, or it isn’t, no matter at what stage of development, as is beautifully described earlier by Shannon.

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    • May 15, 2019 at 4:31 PM
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      So true Shannon and Gerry and as others stated a life is a life never have i understood why can someone not just place the child up for adoption with so many wanting children. We have more rights for animals being mistreated than we do for human beings. Its wrong to take your own life according to law if u have a terminal illness how is it so right according to others to abort a child. Our country has become so double minded.

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      • December 24, 2022 at 2:48 PM
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        >” It’s wrong to take your own life according to law if u have a terminal illness how is it so right according to others to abort a child.”<

        That's a moral judgment you're making. Why is it wrong to take your own life if you have a terminal illness? Is that something that only God can determine? What if you're an atheist? Then what? Is the state playing God by imposing its will on you regarding your own moral values?

        Do you not have a right to ownership of your own body? A Libertarian would say of course. I'm not a Libertarian but that's what their position would be. So… Are we legislating morality here?

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  • May 24, 2019 at 4:16 PM
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    Human life is sacred and should be protected from conception to natural death. Abortion kills human beings. Recently the states of New York and Virginia have brought infanticide under the mantle of abortion. More than 40 years of ” growing up without God have desensitized our culture to a lack of respect for human life. The entertainment industry and media glorify the wrong values and disdain eternal values under the guise of being progressive and non-judgemental.

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  • February 17, 2020 at 12:44 AM
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    Thank you all for your input on what makes a human being, a human being. Just got here after reading the ACLU argues abortion is a “Constitutionally guaranteed right.” So I looked that up (which sounded kooky on the face of it). Lo and behold! Nothing in the Constitution protecting the right to abort a human being. Nor is abortion a form of “healthcare.” But these are the same people who are asserting white supremacy is still a huge issue in the U.S., as is “institutionalized racism.” I suspect they just want to dismantle all that is good and just and righteous in this country. And they’ll destroy true freedom and the right to free religious assembly and belief, in the process.

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    • December 24, 2022 at 1:46 PM
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      >”Nothing in the Constitution protecting the right to abort a human being.”<

      There's nothing in the Constitution that says you have a right to mow your lawn, or to read a book either. There's no constitutional protection for the right to inter-racial marriage. Or to privacy. Check out the 9th Amendment.

      Amendment IX
      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      As for healthcare, would you consider an ectopic pregnancy a healthcare issue? It's a situation that would kill a woman if forced to deliver. I'd call that a healthcare issue. Wouldn't you? So, wouldn't an abortion be a form of healthcare?

      Reply
  • December 24, 2022 at 1:28 PM
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    I have a nice pretty lengthy comment to make on this, but the system is not following through on the posting. I wonder why that is?

    Reply
  • December 24, 2022 at 1:56 PM
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    Ok. It appears that the only posts that are being allowed to be put forward are those that concur with the views of the owner of the site. Any dissenting views are rejected. Otherwise, what’s the explanation?

    Reply
    • December 26, 2022 at 2:40 PM
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      Spare us the nonsense. You have littered our site with 18 of your comments in just the past week or so. None of them have been censored.

      Reply
  • December 24, 2022 at 2:11 PM
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    This is from the Cornell Law School. “The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.”

    Every comment so far on this thread is taking a moral position on abortion. And that’s fine. That’s as it should be. Ok. Most of us get that. So, what does this have to do with the Roe opinion by Alito and the decision by SCOTUS?

    He begins with this: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views”. Ok, let’s stop right there. Alito is about to leap into some very hot water here. Alito admits that we have a profound MORAL issue here. So, Alito is going to address this moral issue. How is he going to do that without asserting a moral view on the issue himself? And where does he draw that view from? It’s not something he’ll find in the Constitution. But…he will find it in Catholic Doctrine on the subject and as a practicing Catholic, that’s where he’ll find his moral compass.

    Alito establishes religion as the basis for his opinion in violation of the Establishment clause of the 1st Amendment.

    Reply
    • December 24, 2022 at 2:14 PM
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      In Deductive Logic, if the premises are true, the conclusion MUST be true.

      P1. All men are mortal
      P2. Alito is a man
      C: Therefore, Alito is mortal

      P1. Catholic Doctrine opposes abortion
      P2. Alito is a practicing Catholic
      C: Therefore, Alito opposes abortion

      Reply
  • December 24, 2022 at 2:17 PM
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    How exactly is Alito NOT injecting his religious beliefs into his opinion? He is a practicing Catholic, and he’s invoking Catholic Doctrine which opposes abortion. So, are we now hostages of a religious doctrine that most of the Nation doesn’t subscribe to? And does this not violate the establishment clause of the 1st Amendment?

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  • December 24, 2022 at 2:35 PM
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    I’m not here to argue whether abortion is good or bad. Personally, I have reservations about abortion, however that’s my personal view, and I can admit that it’s bound by a moral value system that I live by. But my personal view and moral compass is mine and mine only. I cannot impose that on any woman that I don’t know, because those views that I hold are not absolutes. There is no absolute set of values that can be imposed on everybody. I don’t know her circumstances and I don’t know her moral values, and I don’t expect them to conform to mine. That decision must come from her. Not a group of people (mostly men) wearing robes and passing judgment on morality. That’s what they do in Iran.

    Therefore, I can only logically conclude that as abortion is a “profound moral issue” as Justice Alito has pointed out, I have no logical or ethical choice but to leave that to the moral values of the person directly involved in the situation. It is a matter of personal moral choice that only the woman involved can make. Nobody says you have to like her decision. But taking that choice away from her and mandating that she complete the pregnancy to term; forcing childbirth, is diabolical assertion of tyrannical authority that has no place in America.

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  • December 24, 2022 at 2:56 PM
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    Just to set the record straight nobody is “pro-abortion”. People are pro-choice. If that choice is to complete the pregnancy, then it’s her choice. If it’s to terminate it, again it’s her choice. There are no cheerleaders for abortion. I’m not a fan of abortion, but I’m a huge fan of individual choice on moral issues. those that talk Pro-abortion are simply idiots that don’t know what they’re talking about but use loaded language to get their point across.

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    • December 26, 2022 at 2:45 PM
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      Your comment is akin to claiming, “I am not pro-rape, but I think it should be legal,” and “I am not pro-slavery, but I think it should be legal.”

      All of the examples above materially differ from saying, “I am not pro-drugs, but I think they should be legal.” This is because abortion, rape, and slavery all involve actions that people take directly against other humans. In contrast, taking drugs is something that people do to themselves.

      Reply

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