Supreme Court: ‘The Clear Answer is The Fourteenth Amendment Does Not Protect the Right to an Abortion’

By Terence P. Jeffrey | June 24, 2022 | 11:22am EDT
(Photo by Jonathan Ernst-Pool/Getty Images)
(Photo by Jonathan Ernst-Pool/Getty Images)

( - The majority opinion of the Supreme Court in the case of Dobbs vs. Jackson Women’s Health, which reviewed the constitutionality of a Mississippi law that prohibited abortions after 15 weeks gestation, plainly states that the 14th Amendment does not protect a right to abortion.

The 14th Amendment says in part that “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 law.”

One argument in favor of a right to abortion insists that it is an element of the “liberty” protected by this amendment.

The Supreme Court rejected that argument in its decision in Dobbs.

“In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy,” Alito wrote in the opinion of the court.

“That is why the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution,” Alito wrote.

“Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty,’” wrote Alito. “When we engage in that enquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.

Four other justices joined Alito in this opinion. They included Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Chief Justice John Roberts filed “an opinion concurring in the judgment” on the Mississippi law at issue in the case, but indicated that he would not have completely overturned Roe and Casey.

Thomas and Kavanaugh, in addition to joining the opinion Alito, also wrote their own concurring opinions.

Justices Stephen Breyer, Elena Kagan and Sonia  Sotomayor dissented.

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