Constitution Check: Is the GOP aiming to bar all abortions?

Lyle Denniston examines the GOP platform’s desire for human-right-to-life measures, and if it can be accomplished through an amendment to the Constitution.

The statements at issue:

“The unborn child has a fundamental individual right to life which cannot be infringed.   We support a human-right-to-life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.”

Proposed national Republican Party platform language dealing with abortion issues, as written on August 21.

James Bopp says that the Republican platform does not endorse an abortion ban without any exceptions….’ We don’t set out exceptions because we don’t want to get into a debate over which version is appropriate,’ said Bopp, co-chairman of the Republican party platform Subcommittee on Restoring Constitutional Government.  ‘The issue is restoring legal protection for the unborn.  We’re in favor of that concept, but not a particular amendment to do so.’ “

– Remarks attributed to Mr. Bopp by Sarah Kliff, Washington Post reporter, in an August 24 story, “Did Republicans actually endorse a full abortion ban? Maybe not.”

We checked the Constitution, and…

No words in the Constitution are self-enforcing, so amendments to that basic document will come to have real-world meaning only as individuals and institutions test the words and the courts and legislatures react.  If the wording about “unborn children” that the national Republican Party appears ready to endorse at its Tampa convention this week were to become the law of the land, at the very least it would bring a new, uncertain legal relationship between pregnant women and their fetuses.

Even the most direct constitutional language does not have absolute meaning.  For example, the First Amendment says that there shall be “no law” infringing freedom of speech or of the press.  But “no law” obviously has not meant “no law,” because there are laws of libel and privacy, for example, and they clearly are constitutional.

Right now, the constitutional law regarding abortions means what the Supreme Court has said: A woman has a qualified right to end pregnancy, at least up to a point in pregnancy, and that right is more definite if the woman and her doctor agree that an abortion is medically necessary, for the woman’s life or for her physical or mental health.  The fetus has rights to potential life, but those are far less precisely defined as of now, but it is clear that the Supreme Court has refused to acknowledge that a fetus is a “person” in a constitutional sense.

The proposed GOP platform language would seek to change the current status of abortion law in two ways – one constitutional, one legislative.

A new constitutional amendment would for the first time declare that a fetus has a “fundamental right to life.”   If a right is “fundamental,” the Supreme Court has made clear, it must be protected unless the government can show that a law to restrict it is close to absolutely necessary to serve a “compelling” government policy.

One question for courts and legislatures to answer, with that new amendment in force, would be how to balance the interests of the pregnant woman and those of the fetus she is carrying, and how that balance might be tipped one way or the other by circumstance.   Would that set up an inevitable legal conflict between the woman and the fetus?  Possibly, but not necessarily.

Another question would be whether the amendment’s protection for the fetus is greater if the pregnancy moves into the middle or later weeks.  In fact, the interest of the fetus, even under existing law, is said to grow in importance the nearer the pregnancy is to full term and fetal survivability grows.

And still another question would be what reasons of physical or mental health of the pregnant woman would allow an abortion even at the cost of the life of the fetus.   Would pregnancy resulting from rape or incest qualify?  Would only a threat to the life of the mother qualify?

People with opposing views on abortion rights have already weighed in with their interpretations of what such a “human life amendment” would actually mean.  But no one can know for sure unless the amendment actually gets put into the Constitution, and is then applied.

The GOP platform’s second approach appears to be a plea only for a new law or set of laws, not another constitutional amendment.  Such a law apparently would interpret the word “person” in the 14th Amendment to include the fetus.  As such, the fetus’s life could not be extinguished “without due process of law” and the fetus could not be denied legal equality.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

If anything, such a law might raise even more questions about the real-world effect on abortions than would a proposed constitutional amendment to recognize a right to life.   When could extinguishing the fetus’s life qualify as the result of “due process of law”?   To whose rights would the fetus’s legal rights have to be equal?   Would that inevitably mean a balancing of fetal rights with the pregnant woman’s rights?  And how would such a balance work out in practice?

Here, again, the answers cannot be known in advance.   So, in actuality, the GOP platform essentially would embrace a change in constitutional thinking, but would otherwise be an experiment that could take differing paths as it unfolded in the future.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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