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Constitution Check: Could Roe v. Wade be overruled without amending the Constitution?

September 28, 2016 by Lyle Denniston

 

Lyle Denniston, Constitution Daily’s Supreme Court correspondent, looks at an argument supported by Rand Paul in a proposed Senate bill that seeks to use the 14th Amendment as a way to end abortion without enacting a constitutional amendment.

THE STATEMENTS AT ISSUE

randpaul400x300“Working from what the Supreme Court ruled in Roe v. Wade, pro-life lawmakers can pass a Life at Conception Act and end abortion using the Constitution instead of amending it.  That is why it’s so urgent you sign the petition to your Senators and Representatives…A Life at Conception Act declares unborn children ‘persons’ as defined by the 14th Amendment to the Constitution, entitled to legal protection.  This is the one thing the Supreme Court admitted in Roe v. Wade that would cause the case for legal abortion to ‘collapse.’”

Excerpt from an open letter to the public on September 20 by Republican Senator Rand Paul of Kentucky, seeking signatures on a petition to urge Congress to pass a bill introduced by Paul and others last January (S. 2464).

“To implement equal protection for the right to life of each born and preborn human person, and pursuant to the duty and authority of Congress,…the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being…The terms ‘human person’ and ‘human being’ include each member of the species homo sapiens at all stages of life, including the moment of fertilization…or other moment at which an individual member of the human species comes into being.”

 – Excerpt from the text of Senate bill S. 2464, as introduced on January 21, and as reported on the website, Congress.gov.

WE CHECKED THE CONSTITUTION, AND…

More than four decades after the Supreme Court first ruled that a woman has a constitutional right to an abortion, at least in the early weeks of pregnancy, the effort to overturn that right has continued as intensely as ever.  Years have passed since the failure of an attempt to get Congress to propose a constitutional amendment to overrule the 1973 decision in Roe v. Wade, but members of Congress routinely propose new measures to at least limit the right, if not to end it.

The most recent proposal, as described by its leading Senate sponsor, Kentucky’s Rand Paul (Republican), is a quite simple measure that would attempt to scuttle Roe v. Wade by legislation, without having to start the laborious – and often forlorn—process of amending the Constitution.

Among the sources of congressional authority to do that, the Paul measure relies upon Section 5 of the Fourteenth Amendment.  That is the last part of the Amendment, and it gives Congress “power to enforce by appropriate legislation, the provisions of this article.”  Among the protections that the amendment assures is a prohibition on state laws that would “deprive any person of life.”  Senate bill S. 2464 seeks to define “life” to include fetal life, at all stages of pregnancy.

Invoking Section 5 authority, the bill is based upon a novel argument.  It reaches into Justice Harry A. Blackmun’s opinion for the Roe v. Wade majority and pulls out passages that are then offered as support for the Life at Conception Act as a valid use of congressional authority.

In one passage cited by Senator Paul in promoting his bill, Justice Blackmun wrote that the court did not need to settle “the difficult question of when life begins.”  And the senator then turns to another passage in which Blackmun said that, if the court were to accept that “person” under the Fourteenth Amendment meant a fetus, at all stages of development, that would mean that a claim to a right to abortion “collapses” because “the fetus’ right to life is then guaranteed specifically by the Amendment.”

That, the senator has said, “is exactly what a Life at Conception Act would do.”

The argument encounters several obstacles, however, some within the Roe majority opinion itself, and some from other action by the Supreme Court.

The Blackmun opinion drew a distinction between “when life begins,” which the court was not attempting to decide, and whether a fetus is a “person” under the Amendment, which the court did, in fact, decide.  Indeed, the opinion says flatly that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”  Blackmun added that this view had been expressed in prior decisions of the Supreme Court and lower courts.

The opinion also noted that the state of Texas, in urging the court to include a fetus as a constitutionally protected “person,” had conceded that no court ruling could be cited in support of that idea.   And Blackmun ran through the other parts of the Constitution where the word “person” is used, and commented that none of those “indicates, with any assurance, that it has possible pre-natal application.”   In a footnote, it wryly noted that, when the Constitution uses the word in connection with the census that is taken every decade, it has never been understood that fetuses should be counted.

Beyond Roe v. Wade itself, the Life at Conception Act appears to run up against a constitutional principle that the Supreme Court declared in a 1997 decision in the case of City of Boerne v. Flores.  That is the ruling in which the Justices ruled that a federal law, the Religious Freedom Restoration Act, could not constitutionally be applied to restrict state and local governments’ power to regulate at least some aspects of religious organizations’ activity.

The most important part of that ruling, as it applies to attempts to protect fetal life under the Fourteenth Amendment, is that the court declared that Congress simply does not have the power – under the enforcement provision in Section 5 of the Amendment – to redefine a constitutional right that has been spelled out by the courts.  “Congress does not enforce a constitutional right by changing what the right is,” the court said.  The definition of what rights exist under the Constitution, it stressed, is the task of the judiciary.

The court has been claiming that exclusive power of interpretation ever since 1803, and the decision in Marbury v. Madison.

Having spelled out in Roe v. Wade that pregnant women do have a right to seek an abortion and having rejected the argument that protection of a fetus from termination of any pregnancy cannot be based on the mention of “person” in the Fourteenth Amendment, it still seems clear that Roe could be overturned only by actually amending the Constitution.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

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