Liberty and the 14th Amendment
Justice Clarence Thomas's exchange with US Solicitor General Elizabeth Prelogar, who argued on the pro-abortion side of the issue, cut to the crux of the constitutionality argument.
“I understand we are talking about abortion here,” Thomas said. “But what is confusing is that we — if we were talking about the Second Amendment, I know exactly what we are talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It is there. What specifically is the right here that we are talking about?”
“The right is grounded in the liberty component of the 14th Amendment, Justice Thomas,” Prelogar responded. She argued that the right exists in an interpretation of the 14th Amendment's liberty component. The 14th amendment reads that "...the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
Because unborn children are often not considered "persons" under the law, the pro-abortion interpretation is that this clause protects a woman from being "compelled" by the state to carry an "unwanted pregnancy" to term. The unborn child in this case would not be given similar rights to liberty or due process due to their legal status.
Julie Rikelman, representing the Center for Reproductive Rights, confirmed this with her own arguments before the court. "...Casey and Roe were correct," she stated. "For a state to take control of a woman's body and demand that she go through pregnancy and childbirth with all the physical risks and life-altering consequences that brings is a fundamental deprivation of her liberty. Preserving a woman's right to make this decision until viability... protects her liberty while logically balancing the other interests at stake."
Thomas also asked Rikelman where the constitutional right to abortion is found, and she similarly referenced liberty and the 14th Amendment.
This reasoning, of course, does not take into account the right of an unborn child not to be killed. Justice Kavanaugh correctly pointed out in one of his questions that the rights of both a mother and her unborn child cannot be respected at the same time during an abortion. "...you can't accommodate both interests. You have to pick. That's the fundamental problem. And one interest has to prevail over the other at any given point in time, and that's why this is so challenging."
In our next post, the IFRL will highlight the court's discussion over the viability standard.
