Women's Rights. Exactly.

Who makes law in the first place?  The people.

What laws are set in stone? The Constitution.

Who interprets the Constitution? The Supreme Court.

Can these interpretations change back and forth?  Yes

Do States have their own say? Yes

Do State laws have to be congruent with the Constitution? Yes

Has there ever been a national abortion ban? No

Has any president or presidential nominee supported one? No

This background is laid out as a reminder of what’s possible and how.  And what’s being done.  Considering messages that have circulated politically regarding abortion options, here is some more valuable background.

The Constitution discusses fundamental rights. It also specifies federal laws related to currency, military and other country-wide, basic needs that are anchored as mandated provisions.  Beyond this it allows for the creation of “necessary and proper” additional national laws to be made that carry out its governance.  All of the above are known as national or federal laws.

The Constitution does not discuss abortion.  Therefore, making a national law either for or against abortion is not straightforward.

In 1973 (Roe v. Wade) abortion was considered by the Supreme Court to be a Constitutional right as implied in the wording of the Constitution. Being the highest court in the land, this set a precedent and made it a federal law for all states to allow abortion.   The same conclusion was reached in 1992.  (Planned Parenthood v. Casey).

This decision was overturned in 2022 (Dobbs v. Jackson Women’s Health Organization) where it was determined by the Supreme Court that abortion was not a right expressly stated or implied in the Constitution. This set a new precedent, making it not a federal law for all states to allow abortion.

No politician was involved in these decisions. Nor can they be.  Court cases are tried and resolved by judges. This, of course, is separation of powers.  Nixon was president in ’73, Bush, Jr. in ’92 and Biden in ’22.  None could affect the outcome.  Trump wasn’t even around.

Beyond this, there have been many initiatives proposed at the federal level to bring regulations or allowances into the abortion question, as deemed “necessary and proper” per the Constitution’s provision.  This involves expansive or restrictive adjustments.  For example, parental involvement with pregnant youth or Medicaid assistance.  These new national laws, naturally, are voted upon democratically in Congress.

There has never been a national ban on abortion.  No Supreme Court has ever found this to be Constitutional.  No president or presidential nominee has ever talked in this direction or proposed it, nor has Congress proposed it.  Overturning “Roe” in 2022 was not a ban.  It just retracted the error of over use of power at the national level when this power never existed in the Constitution.  But the States remain free.

If Congress ever did propose an unlikely and legally illogical national abortion ban Trump has promised to veto it.  Any Congressperson would veto it.  Congress does not have the grounds to do this, it is not constitutional and it does not remotely represent the will of the people.  It would never, ever pass.

The individual states, as always, make their own State laws that go beyond the Constitution but are not in conflict with it. This is one of the things that makes the U.S. especially intelligent in its founding framework.  There is a respect for local territory and its unique needs and inclinations.  America is not a monarchy.  Again, abortion overall is a matter that is unmentioned in the Constitution, so it falls to the states. Check your individual state for abortion law if you’d like to change it.  Again, this does not relate to a president or any presidential election. If a candidate makes it seem like it does it is a false selling point.

As far as beliefs on the subject, there are people who believe the mother has the right to decide her baby’s fate (as opposed to any government) during pregnancy known as “freedom of choice”.  This stand considers the mother and baby one person, from a legal protection standpoint and the mother chooses the outcome of the baby. This position could be loosely based on the Constitutional clause of “right to property” which became also interpreted and broadened as “right to privacy”, as was the case in the “Roe” trial.  Conversely, there are those who believe the child has the “right to life”.  This alternate position includes a consideration of the mother and baby as two people from a legal protection standpoint. Both having rights. This view could be based legally on the Constitutional phrase, “right to life, liberty and the pursuit of happiness”  or it could be a philosophically or religiously held belief.  There are also differing views of when life begins. 

Again, all of these considerations related to the main subject of abortion itself are taken up at the state level since the U.S. Constitution makes no direction on the subject.  This state-directed legality is the most recent Supreme Court interpretation and legal precedent that we follow.  There are also a myriad of lesser regulations in the various States related to abortion. 

Abortion is almost entirely illegal in 13 states (with varying minor exceptions), permitted up to six weeks in 4, around three months in 2, around four months in 1,  around five months in 20 states, (24-25 weeks is known as “viability” where the baby could live outside of the womb) and permitted up to birth in 8 states.  If you remove the highest and lowest thresholds, 31 states find a mid-point for legal abortion.  75% of the country permits abortion.

New national restrictions and allowances related to abortion are always a possibility but were not proposed by either candidate of the 2024 Presidential election.  Harris spoke in general terms about supporting any legislation to protect freedom of choice.  Trump discussed each State’s prerogative to make law on abortion itself and stated his disinterest in pursuing any related regulations.  Trump promised to never sign an abortion ban.