Why are anti-choice”heartbeat” laws unconstitutional?

We’re back with a follow-up to our post on the unconstitutional Texas Senate Bill 8 – or, as we call it, the Fugitive Abortion Act.

We had promised back in our first post to talk about how the bill, now a law, has been playing out. As expected, other states controlled by Republican legislators are gearing up to pass equivalent bills; Florida’s are working on the basically identical “Florida Heartbeat Act” – “ban most abortions as early as around six weeks, allow members of the public to sue anyone who helps end a pregnancy beyond that point and fine physicians $10,000 for each abortion they perform later in pregnancy.”

You will always hear opponents say these bills are unconstitutional. You will never hear them explain why. Is the right to get an abortion protected by name in the Constitution? It is not. So how are these laws unconstitutional? Here’s a very useful explainer from Cornell Law School’s Legal Information Institute:

In Roe v. Wade [1973], the [Supreme] Court established a right of personal privacy protected by the Due Process Clause [of the Constitution] that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review. Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection. Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy” and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In other words, the Supreme Court interpreted the Fourteenth Amendment of the Constitution, guaranteeing personal privacy, to include the personal decision about whether to end a pregnancy. It also interpreted the Due Process Clause of the Constitution to refer only to people, not embryos or fetuses (“the unborn”), sensibly acknowledging that embryos and fetuses cannot be understood the enjoy the right to due process before the law because they are not people.

This is the decision that anti-choice and anti-woman forces have been successfully working to overturn for the past 49 years. Their identification of embryos and fetuses as “children” and “babies”, even from the moment the first cell divides, has been very effective in convincing their followers that the unborn are indeed people with rights–rights that even overrule the rights of the actual people who are pregnant.

This deliberate untruth has impacted the U.S. in many ways aside from the battle to allow people who are pregnant to decide whether they should continue their pregnancy. It’s one of the foundational arguments of anti-vaccine activists who “have objections because the vaccines were developed or tested on cell lines derived from aborted fetal tissue”. They are willing to infect and potentially kill actual people, including themselves, in order to claim “rights” to life for cells, embryos, and fetuses.

As we cannot state often enough, this is a prime example of the dangers of claiming that the Constitution protects “religious belief.” We’ve said it before, we’ll say it again:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious beliefIt does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public restrooms, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

People are allowed to believe anything they like, including that a dividing cell is a baby. But they are not allowed by our Constitution to enforce their beliefs through laws, for the simple reason that laws apply to everyone, no matter their personal beliefs. That’s one of the reasons why the new laws in Texas and Florida and elsewhere are so dangerous: they include the innovation of having other citizens, rather than state officials or law enforcement officers, enforce the laws by bringing lawsuits against people who seek abortions. This weaponizes people whose personal beliefs align with denying pregnant people control over their own bodies, and gives their personal feelings the power of law.

It also turns our established legal principle of “innocent until proven guilty” on its head by forcing people into court to prove that they have not had an “illegal” abortion–guilty until they prove themselves innocent, and guilty on the basis of violating someone else’s personal, religious beliefs.

This is not the America we want. It’s not what the Founders who wrote the Constitution wanted. Americans who value their natural rights as guaranteed by the Constitution have to be as active in defending them as Americans who do not value them are in tearing them down.

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