Why a constitutional amendment enshrining abortion rights is next to impossible
  • Abortion rights supporters and opponents have previously floated constitutional amendments.
  • Amending the US Constitution for any reason is almost impossible in 2022.
  • Democrats may try anyway, even if it’s just to raise money and motivate liberals to vote.

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The Supreme Court is poised to strike down Roe v. Wade, the 1973 decision that rules the US Constitution protected a woman’s right to an 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 US politics.

The nation has accomplished amending the Constitution just 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 Constitution’s creation.

The most recent amendment to the Constitution took place in 1992 — an entirely forgettable change more than 202 years in the making that prohibited Congress from increasing or decreasing its own pay until after an election. 

Of late, conservatives have clamored for a balanced budget amendment. Liberals have fought to overturn the Citizens United v. Federal Election Commission campaign finance decision via constitutional amendment. Neither of these, nor any other constitutional amendment proposal since the early 1990s, has gone anywhere.

And now, in 2022, when congressional Republicans and Democrats find themselves bitterly divided and bereft of common ground, no matter the cause or concern, the notion of them agreeing on anything related to an issue so polarizing as abortion falls somewhere between fantasy and lunacy.

A constitutional amendment proposal supporting or limiting abortion rights would, like any amendment, require a two-thirds vote of both the US House and US Senate — a much greater threshold than Congress passing a law, which Democrats are also expected to try in an all-but-futile attempt to codify Roe v. Wade for the long term.

If such a constitution amendment proposal somehow passed, three-fourths of state legislatures must then ratify it for the amendment to become law.

From the 1970s through the early 2000s, abortion rights opponents — overwhelmingly Republicans — tried this route. They proposed a series of materially similar constitutional amendment proposals, which all sought to overturn Roe v. Wade. Often dubbed the “Human Life Amendment,” none came close to passage out of either the House or Senate.

Alternately, two-thirds of US states could request the nation conduct a constitutional convention — sometimes known as an Article V convention — for the purpose of amending the Constitution. Three-fourths of states would again have to ratify any amendments the convention proposed. There are also fundamental questions about how a constitutional convention might even work, with the Congressional Research Service noting numerous unanswered questions.  

Such a convention has never occurred in US history.

The likelihood of one occurring for the purposes of creating a constitutional right to abortion seems as remote today as ever, particularly given that Republicans control a notable majority of state legislative bodies, according to the latest count by the National Conference of State Legislatures.

Despite the odds, some Democrats almost certainly will advocate making the right to an abortion the Constitution’s 28th amendment. 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 slim majorities in both the House and Senate. A preview of this arrived just hours after Politico’s report on a leaked draft Supreme Court majority decision.

“News shows SCOTUS is set to overturn Roe. We must hold the GOP accountable for their attacks. Rush $15 to the DNC,” the Democratic National Committee texted supporters early Tuesday morning.

“We must codify Roe v. Wade into law, and we absolutely must strengthen our Senate majority,” Democratic US Senate candidate Abby Finkenauer, for one, wrote in a fundraising email to supporters late Monday night. “Will you donate $5 or more now to defeat anti-choice extremist Chuck Grassley, send Abby Finkenauer to the Senate and protect the right to choose?”

But every political sign points to such a proposal ending up alongside nearly 12,000 other proposed constitutional amendments — in Congress’ repository of historical footnotes.

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