The Constitutional Interpretation Of Abortion Right In The United States

Since abortion right was established as a constitutional right in the Roe v.Wade,the debate around it has lasted for half a century.Although the judgment was attacked,the status of abortion right as a fundamental right has not been shaken.In2022,in the context of political polarization,the Federal Supreme Court overturned Roe,along with Casey,insisting that the abortion right could not be interpreted from the text,history or precedent.But the verdict of Dobbs did not settle disputes.On the contrary,American society was further torn by the judgment.From Roe,Casey to Dobbs,the core of the dispute lies in whether the Constitution gives women abortion right.Can the right to abortion be interpreted from the constitutional provisions.In addition to the Due Process Clause discussed in Roe,Casey and Dobbs,the Equal Protection Clause may provide a better defense for the argument of the abortion right.Whether from the perspective of Due Process Clause or Equal Protection Clause,the issue behind it is constitutional interpretation,which is the different choice of constitutional interpretation path.This paper is divided into four parts.The first part mainly introduces the background and content of the Dobbs.It points out that the legislative activities,judicial proceedings and the invasion of the Federal Supreme Court by the conservative justices jointly led to the verdict of the Dobbs.On this basis,the author analyzes the process of the Dobbs and points out that the core issue of the case is whether there is a constitutional basis for the right to abortion.The second chapter discusses the relationship between the abortion right and the Due Process Clause.This chapter focus on both substantive due process theory and the intrinsic link between abortion right and substantive freedoms,and states that the Due Process Clause offers substantive protection to unlisted fundamental rights.The interpretation of vedict in the relationship between abortion right and substantive freedom faces many challenges,as methodological limitations in the standard it adopted,lax restrictions on abortion in the common law tradition,a sound basis for precedential justification of abortion right,and the right to abortion without deviating from the traditional understanding of freedom.The third chapter discusses the relationship between the abortion right and the Equal Protection Clause.It points out that the Equal Protection Clause does not limit the right to the historical tradition and the private sphere,which was better than the Due Process Clause.What’s more,the essence of abortion right is the right of equality.The relevant legislation regulating women’s abortion right is categorized and has discriminatory purposes,so it is legitimate and necessary to introduce Equal Protection Clause to explain abortion right.And then further analyses the reasons for the absence of Equal Protection Clause in related cases.The fourth chapter points out that behind the use of the above two provisions to explain the abortion right reflects the different path of constitutional interpretation,that is,the different choices between originalism and the view of living constitution.And analyses debates on the principle of constitutional neutrality,the principle of check and balance,the written constitution and the principle of majority on the issue of abortion.The constitutional interpretation of abortion right in the United States has reference significance for the protection of this right and political decision-making in China.