Establishing the right to an abortion under constitutional law is one of the greatest achievements of U.S. constitutional jurisprudence. In 1973, the Supreme Court held in Roe v. Wade that the right to privacy, based on the due process clause of the 14th Amendment, includes the right to decide freely whether to bear a child. In doing so, the Supreme Court acknowledged the fundamental link between one’s identity and the decision about reproduction as a highly personal decision, and one that is part of the fundamental right of privacy.
This link has now been annulled: in Dobbs v. Jackson Women's Health Organization, Justice Alito not only criticized the connection between the right to privacy and the right to have an abortion, he also questioned the right to privacy as a whole. The Mississippi law at hand prohibited abortions after the 15th week – an open contradiction to Roe, which states that no regulation in the sense of a ban is permitted until the fetus is viable (currently agreed on as around 24 weeks after gestation). However, Roe was “egregiously wrong” (p. 5, with reference to Plessy v. Ferguson) and therefore, could be overruled. In Dobbs, Judge Alito's reasoning no longer recognizes a person’s right to choose whether to become a parent or not: The majority opinion states that the Constitution does not provide any evidence for a right to abortion, overruling almost 50 years of precedent.
The right to have an abortion and the right to privacy
It is true that the right to privacy is not mentioned in either the due process clause or the Constitution, so, why should the due process clause encompass the right to have an abortion? First of all, the fact that the right to due process has a substantive as well as a procedural dimension is controversial, but recognized. The procedural due process clause refers to the constitutional requirement that every person has the right to be given notice, the opportunity to be heard, and a decision by a neutral decision-maker. In addition, the substantive due process clause (as well as the procedural due process clause), is based on the principle of fundamental fairness and allows the Court to determine whether a law can be applied - regardless of procedural merits. In Griswold, the Court had to decide whether Connecticut was allowed to ban contraception. The Court stated, that the Connecticut law conflicted with the exercise of the constitutional right to privacy in marital relations and was therefore held null and void.
At the beginning of the Supreme Court's line of jurisprudence, the right to privacy was understood as the right to be let alone, a profoundly anti-totalitarian reading (and thus highly American). However, over the past decades, its interpretation has evolved: the right to privacy is meant to provide the opportunity to build and freely live one's own identity. What matters is "personal autonomy". Although the question of which components of personal development are part of the same remains undefined.
For example, in Bowers v. Hardwick (1986), the Supreme Court refused to declare the prosecution of homosexuality unconstitutional, on the basis of the right to privacy. The reason given by the Court was that homosexuality is not a constitutionally protected right. Although this decision was overturned in Lawrence v. Texas (2003), it highlights a weakness of the right to privacy: Which aspects of personal autonomy should be constitutionally protected, and how can the Court decide such questions in a comprehensible manner?