Common Good Constitutionalism:

This ideology is most prevalent today for conservatives and has in a sense usurped the previous conservative go-to. The basis of this is based in morality, 'common good', religious leniency, and is more right winded than traditional conservatism. Critics argue that this ideology has contributed to more extremism in politics and less intellectualism because its focus is less on traditional legal theory and reasoning, and analysis of precedent; and instead focuses on a vague sense of order that allows judges to determine precedent based on personal views and ideas rather than an actual sound basis. Ironically enough this was a criticism of more left leaning jurisprudence which was labeled as too unstable and too progressive in change.

Concerns and Data after Dobbs:

22 million women and girls of reproductive age in the US now live in states where abortion access is heavily restricted after Dobbs. Organizations interviewed practitioners on new difficulties and impacts arising as a result of the case- and documented the following: difficulty getting abortion in case of miscarriage, forcing state travel in case of emergencies, DENIAL of care and abortion in cases of life threatening ectopic pregnancy, hospitals DELAYING care and action until the patient’s worsened condition will justify protection from prosecution under law that forces care to only be provided to women whose lives are at risk, professionals withholding information fearing that their abortion advice could violate laws, and reduced access to non-reproductive care. Furthermore, girls and women have and will continue to experience serious psychological harm from unwanted pregnancy; including those that occur from rape, abuse, violence, statutory rape, incest, marital rape, and simple accidents. Pregnancy and birth already carry the risk of health complications- exasperated in teens and girls. Not only will abortion restrictions continue to harm and uproot women’s lives- but it has also affected contraception availability- which further increases unwanted pregnancy and thus the need for abortions. Pregnancy patients will also continue to forgo and decline prenatal care in fear of surveillance, and violence against them will spike because of the inability to get an abortion legitimately. If all of this wasn’t scary enough- some states have repeatedly tried to issue bills that would prosecute women and individuals that help them obtain abortion across state lines- fears of surveillance and the rise of an authoritarian regime grow stronger with these laws and intrusions onto women’s safety and humanity.  

Reasoning for Pro-Choice:

Because pregnancy and child-raising have lifelong complications, financial difficulty, risks of death and harm, and can come accidently or before adulthood, people argue that the right to autonomy supersedes any state interest in potential human life because the mother's own life is in jeopardy even if she is prepared and fully grown. The "right to life" does not justify putting a woman in harm if she is not ready or willing to take the risk of pregnancy or child raising. Pregnant women are also more vulnerable to domestic abuse in pregnancy, especially if it is unwanted. Suicide also rises when girls are not able to access abortion. Even if abortion is illegal- girls will still seek it out, and thus abortion will remain but become far more dangerous since it will not be professionally administered. Abortion is a medical procedure- and even minors have a right to medical privacy and self determination to some extent. Women have a right to decide what happens to and with their own bodies- and protecting one form of potential human life is not the righteous act that others say it is- as forcing women to carry out that life when their own is placed in danger is not moral in any sense. Essentially, the risks and right to autonomy should not allow any state involvement in regulating abortion. This right is further protected with constitutional protections of life and liberty, the right to privacy, and no basis on sex discrimination (abortion is regulated, yet vasectomies are not, and male reproductive care in general is not regulated.)

The Future of Abortion Protections in the United States

With Dobbs v. Jackson Women’s Health Organization (2022) overturning Roe v. Wade (1973) made the discussion of abortion a reserved power of the state. This led to the inequality across the United States, as more conservative states continue to implement more stringent abortion policies that allow for abortion only up to six weeks to almost entirely banning the medical procedure in others. However women have shown they are willing to go across state lines to access this procedure, and there is an even bigger threat to women who do not have the ability to do so, and what they might resort to in that case. The states have reserved powers in order to best serve their constituents as the overall diversity of the American states makes it difficult at times to adhere to one policy that works efficiently for each state, but in the case of abortion there should be standardization across the board, but should it be done after the overturn of Roe v. Wade?

Ian Millhiser in his article “The uncomfortable problem with Roe v. Wade” suggests that within the reasoning of Roe v. Wade there itself lies an issue. The decision of Roe reasoned on the basis of the right to privacy found within the 14th Amendment and the “concept of personal liberty and restriction upon state action.” and that abortion itself is an unenumerated law that is protected under the 9th Amendment. However Millhiser points out that the Supreme Court Justices over the year have not agreed on what these unenumerated rights might be, and with this lack of definition in the Constitution, then led to SCOTUS’ decision in 2022 that due to the Constitution not mentioning abortion, its lack of deep historical significance, and it's in essentialness to liberty, abortion itself was not one of the unenumerated rights protected under the 14th Amendment. The vagueness of the unenumerated rights leaves it up to the interpretation of the current Justices, and with the unequal distribution of liberal and conservative individuals within the Supreme Court, it should not be surprising to anyone that reversal of other unenumerated rights is at risk. 

Millhiser proposes that there is another way to ensure the existence of the right to an abortion is through a different portion of the 14th Amendment that no individual is denied “the equal protection of the laws” as it takes the right to abortion outside the scope of it being a privacy protection but rather one based on equality. Equality in of itself is something that the United States has continually struggled with since its inception, and in this case there is the argument of gender equality, do men and women have the same access to reproductive healthcare across the board? The answer to this is no, men are able to access fertility procedures like vasectomies in all fifty states, however with abortions women face a variety of issues as they must consider the state they are in and what restrictions are placed on the procedure. The proposal of this framing of abortion rights comes with the recent news as of last year of California’s Constitution adding abortion protections, but with the current polarization of the House of Representatives, how long will it take for federal law to be created that protects abortion? 

Abortion is an unenumerated right in the constitution- and is thus not directly protected, but it can be argued to fall under parameters that are protected within certain amendments. These parameters include things like the right to privacy, right to liberty, and the right to life.

Balancing the interests of state with their representatives' moral or religious reasoning for ensuring the birth of new infants against the privacy, health, and autonomy of women is the core debate regarding abortion in the U.S.

Regardless of how the legal definition of abortion may change as seen in the past decades, the need for abortion will not change. Abortions will still be sought out, but whether these abortions are conducted safely is a different question. The availability of abortions makes it so that those who do choose have the ability to do so safely without endangering their lives to do so, but those who do not have access have shown in the past to go to desperate lengths regardless of the cost. Ultimately the public at large will never totally agree, however it should be the consensus that regardless of what one's stance is on abortion, that individuals should have access to abortion whether they choose to get one or not for the overall safety. The Human Rights Watch highlights in “Human Rights Crisis: Abortion in the United States after Dobbs.” that there have been “delays in miscarriage care” as healthcare professionals fear that intervening may lead to prosecution on their part and even in the case that the patient’s condition falls under the exception of a state’s abortion law. Which brings up a question of how personal belief has begun to flood into the healthcare system. While healthcare providers are unable to deny any person an abortion, the laws currently in place have allowed for healthcare physicians to deny an abortion even in the case that it is legal under that state’s abortion law due to the “reluctance” of staff and medical suppliers, showing how current state abortion policies allow for a gray area where health providers are unwilling to provide legal abortions despite due to current strict policies. Looking at current abortion policy, there is a need for standardization, as the states declare their own abortion policies, making states bolster their protection or banning the procedure almost outright leading individuals seeking abortion to having to navigate a confusing landscape. With federal policy, this standardization becomes a constitutional protection outside the hand of the Supreme Court, but with the widening gap in partisanship within the House the rode to abortion policy looks to be a long one.

Roe determined that state interest in regulating abortion only begins when the fetus becomes viable, and so a trimester standard was developed to measure the viability of a fetus and when a state can interject. During the first trimester- the state has no ability to override a person’s discretion in abortion. In the second, they could regulate it to protect the parent, but bans were illegal. In the 3rd, regulations were harsher and bans might be instituted. However, any bans needed to have exceptions for abortions needed to save the mother’s life.

Doe v. Bolton was decided at the same time as Roe, and it said that medical professionals had more discretion in abortion compared to legislators because of their expertise- and abortions fell under patient confidentiality. 

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

• 1988-89 abortion policy was amended but was challenged by abortion clinics on the basis of being pervasive and barring women from their right to privacy and thus right to abortion under the 14th amendment. The Pennsylvania law had provisions that required informed consent, a 24-hour waiting period before the procedure, consent of 1 parent if underage, and informing the other partner if the pregnant person was married. 

• Federal court upheld all except requiring the consent of the other partner if married.

• SCOTUS asked if the provisions violated women's right to abortion as guaranteed by Roe v. Wade?

• Very contentious 5-4 decision upheld Roe but kept most provisions in the law. An additional doctrine was introduced, that being the undue burden clause- which states that if the principle or provision has the intent or effect of causing an undue burden on someone seeking an abortion, then it would be illegal. 

• For some reason, only having to have the partner notified of an abortion failed the due hardship clause- despite not needing to have their consent- only needing to notify them. One would think that needing parental consent would be more of an obstacle- especially since teenagers are allowed medical privacy even as minors. 

Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022)

Dobbs v. Jackson Women’s Health Organization (2022) infamously overturned both Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992) that protected under federal law a women’s right to an abortion. The case studied Mississippi’s “Gestational Age Act” that disallowed most abortions after the fetus passed the gestational age of 15 weeks and its constitutionality. The Supreme Court found in its originalist interpretation of the Constitution that the document offered no such protections to abortion and thus made the right to abortion not a protected right under the Constitution, nullifying all SCOTUS cases that did. With this decision, the matter of abortion was thus put into the hands of each state to deliberate, however this has had led to severe consequences as more conservative states have made it difficult to attain reproductive care.

Commercial Speech 

David Schultz writes on Commercial Speech for the Free Speech Center and discusses the intersection between free speech and abortion. Commercial speech is a protected form of speech under the Constitution, but the Supreme Court has stood firm that commercial speech does have its limitations; for example, commercial speech that is misleading and or promoting an illegal product is not protected. Bigelow v. Virginia ruled that despite abortion being illegal in Virginia, ads in the state that promoted abortion in nearby states like New York were protected forms of commercial speech. But since the the ruling of Dobbs v. Jackson Women’s Health Organization the rise in abortion bans has become a reality for many states, showing a duality within the United States in how speaking about abortion is legal, but its accessibility within the country is illegal, which proves vital for people across the country as individuals travel to access abortion care outside of their state thanks in part to commercial speech and also being freely discuss abortion options outside of one’s state. The public forum continues to be a protected space where abortion can be discussed and this proves to be vital in giving people access to information about abortion but also opening dialogue with those of varying opinions to better understand each other's views and to come to a consensus.

Compelled Speech - David L. Hudson Jr.

The article “Compelled Speech” by David L. Hudson Jr. discusses the compelled speech doctrine. This doctrine is defined as a principle of noninterference on the part of the government when it comes to political opinion and expression. A person cannot be punished for not adhering to the beliefs and recommendations of the government. West Virginia State Board of Education v. Barnette (1943) is cited as the main example of this doctrine being practiced. This case ruled that children can not be forced to stand for or recite the pledge of allegiance in school. The resulting opinion was that no authority can ask citizens of the United States to pledge their faith to anything they don’t wish to be allegiant to. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), is a more recent case that also employed this doctrine. This case essentially ruled that a private organization putting a parade together did not have to include positive LGBTQ+ messages if it went against their beliefs. The doctrine also enforces a rule that government officials can not force groups or individuals to use their compulsory payments to financially support causes that are inconsistent with their beliefs. This applies to union fees that are mandatory for certain jobs, meaning these fees cannot be used to support principles not fundamental to the job position or purpose. There is some conflict with this doctrine when it comes into conversation with other doctrines, such as the government speech doctrine which allows the government to advocate their own ideas, even through private groups. This article raises questions about the autonomy of private groups and how that free will legitimizes their ability to selectively support certain political causes. In the context of abortion, this doctrine can come into play a couple different ways. The debate over when life begins is clearly a controversial one, but for the sake of this argument, let's assume that we are not considering abortion a violation of the fetus' right to life. In that case, the condemnation of abortion is a political agenda, and the government should not be able to force private medical professionals to stop doing the procedure without risk of arrest.

National Institute of Family and Life Advocates v. Becerra The case National Institute of Family and Life Advocates v. Becerra has to do with the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act and how it interacts with the Free Speech clause in the first amendment. The National Institute of Family and Life Advocates (NIFLA) argued that women’s health clinics should not be legally obligated to give patients accurate information regarding their choices (including abortion), or to disclose if they were operating as an unlicensed clinic. NIFLA argued that forcing clinics to make these statements violates the constitution. Both the district court and the ninth circuit court denied this movement based on the precedent set by Winter v. Natural Resources Defense Council. When taken to the Supreme Court, however, a 5-4 vote reversed the decision. The court argued that professional speech is not judged differently than any other speech, and content-based regulations can not be forced on the speech unless it is “factual, noncontroversial information in their ‘commercial speech’”, which they deemed the unlicensed law was not. The majority opinion argued that the unlicensed notice was in response to a “hypothetical” risk rather than a real threat. The dissenting opinion disagreed with this claim, saying that there are real risks involved with not informing patients of their status as a licensed or unlicensed clinic.