In 1973, in Roe v. Wade and Doe v. Bolton, the Supreme Court of the United States famously – some would say notoriously – ruled that state laws that ban pre-viability abortions violate the Fourteenth Amendment. Was the Court's ruling, which still stands, correct? In particular, do state bans on pre-viability abortions violate any part of the second sentence of Section 1 of the Fourteenth Amendment? Although such bans don't implicate, much less violate, either the due process clause or the equal protection clause (that is, given the original understanding of the clauses), they do implicate the privileges or immunities clause – as does any law that treats some citizens less well than other citizens. (I can't think of a regulatory law that doesn't treat some citizens less well than others.) A ban on pre-viability abortions – although it applies to everyone and not just, say, to African Americans – treats some citizens less well than others: It treats those who have had a pre-viability abortion (or who have performed one) less well than those who have not by punishing those who have had a pre-viability abortion.

But to implicate is not necessarily to violate. Recall from the preceding chapter that according to the Fourteenth Amendment, a state may not discriminate against any of its citizens – it may not treat any of its citizens less well than any of its other citizens – on the basis of the view that they are second-class citizens.