A lot has changed in our laws and statutes since the Roe vs. Wade ruling in 1973. The United States Constitution does not explicitly address a right to health care. The words "health" or "medical care" cannot be found anywhere in the text of the Constitution. The provisions listed in the Constitution are evidence that the framers were more concerned with guaranteeing freedom from government, rather than providing specific rights to procedures and services related to health care.

Laws such as "The Patient Self-Determination Act" of 1991, "The Affordable Care Act", "The Uniform Determination of Death Act", "Preventing Maternal Deaths Act" of 2018, "The Unborn Victims of Violence Act" of 2004 and so many others were created and defined to protect citizens rights as they relate to the complex issue of life, death, healthcare and patient outcomes.

At the time that Roe vs Wade was passed there existed few legislative statutes governing a citizens rights with regards to their health care decisions. Now there exists a multitude of federal laws and regulations to define and protect patients. Yet no one has been talking about or whether these laws would protect access to abortion as an healthcare decision even without Roe vs Wade.

** I made some edits to the original question to clarify my intent: Do existing laws, which did not exist in 1973, serve to protect the right to choose in the absence of Roe vs. Wade?

*** Additional Edits In a previous version of this question I made an argument on the legal status of unborn life. It was just intended as an example but it distracted from the main purpose of the question. The core of my question is still valid. I still want to know about any laws that could protect a woman’s right to an abortion as a medical decision. Since posting the question the White House has now quoted the “Emergency Medical Treatment and Labor Act” as a Federal law on emergency treatment that preempts State Laws and Regulations that ban the procedure without exception. Are there others like this law that provide additional protections?

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    I'd consider narrowing the focus of this question or it is likely to be closed as opinionated or too broad. A "why" question implies an internally consistent set of logical rules that can be followed to reach a deterministic conclusion, and seeks to identify these rules. In reality the interpretation of the law is not internally consistent (i.e. it is sufficiently broad such that there is not a single universally valid interpretation). The "why" question as it pertains to the recent ruling is answered from a single interpretive perspective (i.e. that of Alito et al.) in the opinion.
    – DerekG
    Jun 28, 2022 at 18:22
  • Hi Derek, thanks for the comment. I made some edits but I think the nature of the question is still to broad. If this gets closed I will try a different approach. Jun 28, 2022 at 18:39
  • The "life" argument doesn't seem strong. States have a general "police power" to legislate on all sorts of matters that need not have anything to do with the preservation of human life. Jun 28, 2022 at 18:56
  • And there are all sorts of non-moral justifications that could be given for restricting or banning abortion; e.g. the state wants to have more babies born so that it will have more taxpaying adult citizens down the road. States make all sorts of laws on flimsier justifications than that, and if they don't collide with anyone's constitutional rights, that is normally fine. Jun 28, 2022 at 19:00
  • If anything, federal laws since 1973 have mostly tended to further restrict abortion, to the extent that Roe allowed them to. Notably, Pub. L. 108-105, the so-called "partial-birth abortion ban". Or the Hyde amendment. I can't think of any that went significantly in the direction of protecting the right. Jun 28, 2022 at 19:03

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One question raised here and worth at least noting is that the Texas argument in Roe includes the following assertion from Blackmun:

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment.

What follows is an investigation of the question whether a fetus is a person – basically, it has not been legally (constitutionally) determined that a fetus is a person. Issues of dying, being a citizen, being alive etc. are irrelevant since the central concept that relates to right is being a "person".

It is reasonably well-known that statutes forbidding abortion were originally passed in order to protect the health of women – that was the original justification. However, there is a massive disagreement over what things "protect the health of women". In some states, it has been decided that allowing abortion is a rational, indeed compelling state interest; in other states, the opposite is the case. Although the federal government does get involved in health care matters, health care is fundamentally a state interest. Federal intervention power in medicine has two sources: the Commerce Clause, and the Tax and Spend Clause (Congress, which dispenses a lot of money, gets to say how the money will be used). There is ample case law saying that Congress cannot force states to repeal their bans against abortion, under penalty of losing federal money. I have yet to see a plausible Commerce Clause argument that would override the states' right to define their "compelling interest" in health care. Health care is not a constitutionally defined federal interest and it is a state interest, so we are back to square one, when it comes to using federal power to remove state discretion.

  • Hi, I edited my question to remove my example on the legal status of life as it distracted from my primary objective with this post. Sorry for creating confusion. Jul 14, 2022 at 18:14

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