Abortion Proposals

Prior to the Supreme Court's landmark ruling in Roe v. Wade in 1973 abortion was not a federal constitutional issue, but was instead left up to the states to decide. This constitutional silence in the pre-Roe era is reflected in the Amend data set, with zero proposed amendments pertaining to abortion from the nation's inception until 1972. This changed with Roe. Or, arguably, this changed just before Roe. In March of 1972, to the ire of many conservatives, Congress passed the Equal Rights Amendment and sent it to the states for ratification. The first proposal for a constitutional amendment to restrict or ban abortion was introduced into Congress in May of 1972. Nine months later, in January 1973, the Court issued its decision in Roe.

The first response of conservative critics of the Court's decision was to nullify it via constitutional amendment, leading to many more proposals to regulate or outright ban abortion. In 1973 alone, there were 28 distinct attempts in Congress to pass a constitutional amendment prohibiting abortion; the year that saw the most pro-life proposals was 1975, with 65. The earliest of these proposals were for “right to life" amendments. For example, in 1973 Congressman Lawrence Hogan (R-MD) proposed that “Neither the United States nor any State shall deprive any human being, from conception, of life without due process of law."

Other proposals, rather than use the Constitution to explicitly ban or permit abortion, sought to return the issue to the jurisdiction of the states. In 1973, Congressman George William Whitehurst (R-VA) introduced an amendment that would declare, “Nothing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion." This variation of amendment proposal reflected the same argument used by the Roe dissenters, Justices Byron White and William Rehnquist, who argued that the question should be left to the states to decide.

In the summer of 1973, Senator James Buckley (R-NY) modified the right to life amendment proposals by formally defining personhood and expanding its definition to the unborn. Section 1 of the proposed amendment specified that, “With respect to the right to life, the word ‘person,' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency." Interestingly, Section 2 provided a caveat that abortion could take place in the face of medical emergencies. It was this personhood abortion amendment, first introduced by Buckley, that would become the most common among later pro-life constitutional amendment efforts.

This does not mean that the personhood approach was the most successful one, though. Senator Orrin Hatch (R-Utah) had in 1977 proposed an amendment that emphasized this personhood argument against abortion. But in January of 1983, Hatch changed his approach, putting forth an amendment that mirrored earlier proposals by affirming that a right to abortion is not secured by the Constitution and that the power to regulate abortion should be left to the states and Congress. After emerging from a Subcommittee on the Constitution, it stated, succinctly: “A right to abortion is not secured by this Constitution." It was this concise language that would become the only human life amendment to make it to a Senate floor vote in June of 1983, gaining 49 votes in favor — 18 votes short of the required two-thirds majority. Meanwhile, the campaign to defeat the ERA found success; in 1986, a congressionally determined period for its ratification expired (although ongoing lawsuits contest the constitutionality of the time requirement).

In the nineteen-eighties and nineteen-nineties, the push for a pro-life constitutional amendment diminished. Instead, the pro-life movement found more success restricting abortion both in the courts and through state-level legislation. For instance, although the Court upheld Roe in Planned Parenthood v. Casey (1992), it also allowed states to regulate abortion so long as these regulations did not place an “undue burden" on women seeking abortions. This effectively inched the question more towards the domain of the individual states. After Casey, the number of yearly pro-life amendment proposals dropped nearly to zero. The last one in the dataset is from 2005 — the only one proposed that year — and mimics the personhood template first invoked by Buckley. Two years later, the Supreme Court banned partial-birth abortion in Gonzales v. Carhart (2007).

Once changing judicial interpretations started chipping away at abortion rights, pro-choice amendment proposals began to emerge — but these were never as frequent or sustained as the pro-life ones. In fact, the dataset only includes seven pro-choice amendment proposals. The first, proposed in 1993 by Congresswoman Patsy Mink (D-HI), sought to formally constitutionalize the right to abortion, demanding that “The right of individuals to have full control over reproductive decisions affecting their own bodies shall not be abridged." The other six pro-choice amendment proposals were put forth by Jesse Jackson Jr. (D-IL) every other year from 2001 to 2011. His attempts, which combined the ERA with a provision protecting "Reproductive rights for women," never made it past the Committee on the Judiciary. Pro-choice proponents have been more active and successful at the state level. In 2022 alone, California, Vermont, and Michigan amended their constitutions to protect the right to reproductive freedom.

In 2022, the Court overturned Roe in the landmark case Dobbs v. Jackson Women's Health Organization. Broadly, the Amend data offers insight into the nature of the political and constitutional change that led to the reversal of Roe. While abortion-restriction amendment efforts never succeeded, the changing nature of their wording and argumentation traces an important history. Some proposals sought to attack the issue by constitutionally banning abortion and expanding the definition of personhood, while others sought to leave the question of abortion to the legislatures rather than the Constitution. Furthermore, comparing the frequency of amendment proposals alongside abortion developments in the courts leads to fascinating insights about the two competing ways that the Constitution can be changed: via constitutional amendment or judicial interpretation. When conservatives saw no progress via the former, they ultimately returned their efforts to the latter, successfully overturning Roe fifty years later.