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HomeBlogAbortion and Other Unenumerated Rights

Four days ago, Indiana’s new anti-abortion laws went into effect. As of September 15th, only those who are victims of rape or incest, those carrying fetuses with fatal anomalies, or those whose lives are at risk will be allowed to obtain an abortion in Indiana, provided it is within the first ten weeks. The abortion clinics have had their licenses revoked and all abortions must be outpatient procedures at hospitals.

Other states, like Tennessee, had “trigger laws” in place that would become active in the event that Roe v. Wade was overturned. Tennessee has a near total ban on abortions and has made it a Class C felony to perform an abortion. The current list of states where abortion is now illegal is as follows: Idaho, South Dakota, Wisconsin, Indiana, Missouri, Kentucky, West Virginia, Tennessee, Georgia, Alabama, Mississippi, Louisiana, Arkansas, Oklahoma, and Texas. Georgia still technically allows abortion, but it has adopted a law that bans abortions after a heartbeat can be detected—which is about six weeks after formation of the zygote. Because most women don’t yet know that they are pregnant six weeks into a pregnancy, this is essentially a ban on abortion.

After Roe v. Wade was struck down by the Supreme Court in June, there has been speculation that other unenumerated rights might be on the chopping block. This includes the right to privacy, the right to travel, the right to autonomy, and both interracial and gay marriage. Because they are, by definition, unenumerated, there is not a full list of unenumerated rights.

If you are concerned about losing any of these rights, we would encourage you to write to your State Representative and your State Senators. The Constitution provides that Congress can propose an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. This is the only way that amendments have previously been passed; thus far in our history as a nation the States have never called for a constitutional convention, which requires two-thirds of the State legislatures.

Only two-thirds are required to call for the constitutional convention, right? So why don’t we do that to make an amendment for abortion rights? Well, even though it only takes two-thirds of State Legislatures to call for the convention, it takes seventy-five percent of states to pass an amendment. Fifteen states currently ban abortion, making up thirty percent of the United States. In order for a Constitutional Amendment to be created granting women access to abortion and decriminalizing the performance thereof by doctors, three of those states would need to vote in favor of the amendment for it to receive the seventy-five percent support it would need to be passed. Given that many of these states, like Indiana, just recently passed new laws banning abortion, it is not likely that an amendment protecting abortion rights is feasible in this current political climate.

Let’s be honest, it is probably unnecessary to write your local representatives to encourage new amendments protecting all of these unenumerated rights. After all, there is not a single politician using interracial marriage as a platform for his or her career and it is preposterous to assume that now of all times such a platform would exist akin to the severity of abortion. The States have had almost fifty years since Roe v. Wade initially passed in 1973 to make it an amendment, which would have protected those rights, but they neglected to do so and failed their citizens. We may not think that those unenumerated rights are in danger, however there are plenty of unenumerated rights that could be in danger soon, such as the right to travel, which could be taken away under the pretense of national emergency if faced with another pandemic. We as a people have a responsibility to protect our rights and make our voices heard. Just because the freedoms and rights we enjoy may not be at risk today does not mean that there won’t come a time in the future when we need protections in place.

We hope you’ve enjoyed this article and that we’ve given you something to think about. Thanks for reading, and we hope that you have a beautiful day.

Copyright © 2022 C.W. Lachey Law, PLLC, All rights reserved.


Constitutional Amendment Process | National Archives

Indiana adopts near-total abortion ban as governor signs SB 1 (indystar.com)

Tennessee ‘trigger’ law banning nearly all abortions goes into effect – ABC News

Tracking the States Where Abortion Is Now Banned in the U.S. – The New York Times (nytimes.com)

The Right to Interstate Travel Under the Fourteenth Amendment – FindLaw

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