Full text of the Fourteenth Amendment to the United States Constitution:
No State shall MAKE or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
ISTM that abortion “trigger laws” that were passed in anticipation of Roe v. Wade being overturned fall under the prohibition against MAKING such a law, and can arguably be declared null and void unless and until the legislatures that passed them are required to jump through the hoops again.
Has this reading of the Constitution been attempted? It does strike me as being textually originalist.
(Moderation staff: This MIGHT be happier in GD or P&E. My feelings will not be hurt should you decide so.)
Interesting idea. But afaik, those idiot laws were passed legally at that time? But I like the idea. Any legal pundits or lawsuits out there yet on this?
But my take is that they were passed while RvW was the law of the land, and by the text of the 14th, they were NOT passed legally. They were passed in violation of the Constitution (and it isn’t legal to do that).
My understanding is that the trigger laws were specifically worded to only restrict access to abortion if doing so ever became legal. So they never were written so as to restrict any existing rights.
Hence why they didn’t even take effect right away.
Seems to me that if there were a shred of merit to this analysis, then the highly motivated and highly informed attorneys working for the ACLU and the like would be all over it.
That was my understanding. I’ve never read one (though I probably should since I’m interested in how they’re worded) but I figured it wasn’t that the law said, for example, “abortion in this state is illegal” which would be unconstitutional and ignored as long as Roe v Wade stood, but it would be the law as soon as Roe was overturned. But rather a law that said something more along the lines of “when abortion rights are within the jurisdiction of this state, than abortions shall be illegal”.
Worded the second way, I assume the 14th amendment is okay with it.
ETA, here’s the opening line from a “trigger law” in Idaho:
18-622. criminal abortion. (1) Notwithstanding any other provision of law, this section shall become effective thirty (30) days following the occurrence of either of the following circumstances:
(a) The issuance of the judgment in any decision of the United States supreme court that restores to the states their authority to prohibit abortion; or
(b) Adoption of an amendment to the United States constitution that restores to the states their authority to prohibit abortion.
So that seems to basically be it. Preface this “law” with wording that states it goes into effect as soon as it’s arguably legal to do so.
Are you trying to argue that an unborn baby is the property of the mother, just like a car would be? Because I’m not sure how else your argument can apply.
The relevant part is “abridge the privileges or immunities of citizens of the United States.” Roe essentially established an immunity to prosecution for having an abortion. Hence, while it was still law, states were not allowed to make any new laws or enforce any old laws that banned abortion.