- Supporters and opponents of abortion rights have previously tabled constitutional amendments.
- Amending the United States Constitution for any reason is almost impossible in 2022.
- Democrats can try it anyway, even if it’s just to raise money and motivate liberals to vote.
The Supreme Court is about to overturn Roe v. Wade, the 1973 decision ruling that the US Constitution protects a woman’s right to abortion without significant government restrictions.
So could the American body politic effectively override the Supreme Court by amending the Constitution?
Almost impossible.
Under the most favorable circumstances, amending the Constitution is one of the most difficult—and rare—acts in American politics.
The nation has managed to amend the Constitution only 27 times in the 233 years since the Constitution became the nation’s supreme collection of laws. More than half of those amendments took place within the first 80 years after the creation of the Constitution.
The most recent amendment to the Constitution was made in 1992, a completely forgettable change after more than 202 years in the making that prohibited Congress from raising or lowering its own salary until after an election.
Lately, the Conservatives have clamored for a balanced budget amendment. Liberals have fought to overturn the Citizens United v. Federal Election Commission through a constitutional amendment. None of these, nor any other constitutional amendment proposals since the early 1990s, have gone anywhere.
And now, in 2022, when Republicans and Democrats in Congress find themselves bitterly divided and bereft of common ground, regardless of cause or concern, the idea that they agree on anything related to an issue as polarizing as abortion falls somewhere between fantasy and madness.
A proposed constitutional amendment supporting or limiting the right to abortion would require, like any amendment, a two-thirds vote of both the US House of Representatives and the US Senate – but a futile attempt to codify Roe v. Wade long term.
If such a proposed constitutional amendment is somehow approved, three-fourths of the state legislatures must ratify it for the amendment to become law.
From the 1970s to the early 2000s, opponents of abortion rights, mostly Republicans, attempted this path. They proposed a series of materially similar constitutional amendment proposals, which sought to overturn Roe v. Wade. Often referred to as the “Human Life Amendment,” neither came close to passing either the House or the Senate.
Alternatively, two-thirds of the US states could request that the nation hold a constitutional convention, sometimes known as an Article V convention, to amend the Constitution. Three-fourths of the states would have to re-ratify any amendment proposed by the convention. There are also fundamental questions about how a constitutional convention might work, with the Congressional Research Service pointing to numerous unanswered questions.
Such a convention has never occurred in the history of the United States.
The likelihood of it occurring for the purpose of creating a constitutional right to abortion seems as remote today as ever, particularly given that Republicans control a sizeable majority of state legislative bodies, according to the latest tally by the National Conference of State Legislatures.
Despite the odds, it is almost certain that some Democrats will advocate making abortion rights into the 28th Amendment to the Constitution. If nothing else, the effort could motivate voters, help raise campaign money and otherwise rile up the party’s base ahead of the 2022 midterm elections, where Democrats risk losing. a slim majority in both the House and Senate. A preview of this came just hours after Politico’s report on a leaked draft of the Supreme Court’s majority decision.
“News shows SCOTUS is ready to unseat Roe. We must hold the GOP accountable for their attacks. Give $15 to the DNC,” the Democratic National Committee texted supporters early Tuesday.
“We must codify Roe v. Wade into law, and we absolutely must strengthen our Senate majority,” Democratic US Senate candidate Abby Finkenauer wrote, for example, in a fundraising email to her supporters Monday night. . “Will you donate $5 or more now to defeat anti-abortion extremist Chuck Grassley, send Abby Finkenauer to the Senate, and protect the right to choose?”
But all political signs point to such a proposal ending up, along with nearly 12,000 other proposed constitutional amendments, in Congress’ repository of historical footnotes.