Column: The right to abortion is deeply rooted in the Constitution and flows from amends for slavery
Now that we’ve had a moment to digest the leaked Supreme Court draft opinion overturning Roe vs. Wade, one thing is clear: Words have lost their meaning.
The court’s three newest justices, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, all said under oath during their confirmation hearings they believed that the two major rulings upholding the federal right to abortion — Roe vs. Wade and Planned Parenthood vs. Casey — were settled law.
“Casey,” testified Gorsuch, “is settled law.”
Roe, testified Kavanaugh, “is settled as a precedent of the Supreme Court. … It has been reaffirmed many times over the past 45 years.”
“Roe,” testified Barrett, “is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis.”
Were the nominees prevaricating? That’s debatable, but they’ve certainly opened themselves to ridicule.
“They knew that if they were honest they wouldn’t get the job, which I think is perjury,” said late-night TV host Stephen Colbert. “But what do I know? I’m not a Supreme Court justice. I’m not a good enough liar.”
It should be obvious by now that none of this trio ever considered Roe and Casey settled law, and they certainly did not respect the doctrine of stare decisis — Latin for “to stand by things decided” — otherwise they would not have signed on to a draft opinion that tosses out a right that has improved or saved the lives of millions of women who have exercised it over the past half-century.
Another word that seems to mean nothing to the court’s conservative bloc: liberty.
“Liberty is a capacious term,” writes Justice Samuel A. Alito Jr. in the draft opinion. “As Lincoln once said: ‘We all declare for Liberty; but in using the same word we do not all mean the same thing.’ ”
Well, if liberty can mean so many things, then I guess it really means nothing at all. (Unless we are talking about allowing discrimination in the name of religious liberty, in which case Alito can say exactly what it means.)
Alito’s “underlying message is it’s illegitimate to protect rights that aren’t laid out clearly in the text of the Constitution,” said David Gans, director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, a think tank and legal advocacy organization dedicated to a progressive interpretation of the Constitution. “This is an opinion that is incredibly dismissive of a precedent that is bedrock. The writing exudes hostility.”
“Until the latter part of the 20th century,” writes Alito, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None. … Abortion had long been a crime in every single State.” (Legal scholars say he is dead wrong about that.)
But why did so many states enact abortion bans in the mid-19th century?
Religious bigotry was one factor. White Protestant lawmakers worried about the declining white Protestant birth rate in comparison to the high birth rates of Catholic immigrants. They worried about “Catholic hordes” and their presumed loyalty to the pope.
And sexism, of course, was another factor. They believed abortion was a repudiation of a woman’s highest calling: motherhood. Alito is dismissive of these arguments. “Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?” he asks, as if such a thing is inconceivable.
In a law review article published in March, Gans wrote that in 1871, the American Medical Assn. described a woman who wanted an abortion as someone “unmindful of the course marked out for her by Providence,” who “overlooks the duties imposed on her by the marriage contract. She yields to the pleasures but shrinks from the pains and responsibilities of maternity.”
Many of the personal liberties we now consider fundamental are what Gans calls “rights of heart and home” — like abortion and interracial and same-sex marriage — and are not enumerated in the Constitution. They find their justification in the 14th Amendment’s equal protection clause. The 14th Amendment was written after the Civil War specifically to protect the rights of once-enslaved Americans who were being revictimized by a raft of restrictive, racist laws in Southern states. Fresh in memory were the horrors of slavery, where families were ripped apart and women were forced to bear children born into slavery. Among the legislators’ intentions, said Gans, was the protection of bodily integrity and the integrity of the family.
“When they debated it,” said Gans, “members of Congress who wrote the 14th Amendment talked about the right to have a wife, children and family. What definition of freedom doesn’t include these things?”
People who worry that overturning Roe and Casey is just the beginning of an American dark age for liberty are right to be alarmed. Alito’s draft opinion, Gans said, “is written in a way that emboldens more attacks on core precedents that guarantee fundamental rights.”
We can’t take anything for granted.
Just before the Senate Judiciary Committee hearings for then-Supreme Court nominee Ketanji Brown Jackson, Tennessee Republican Sen. Marsha Blackburn criticized the landmark 1965 Supreme Court ruling that legalized access to contraception as “constitutionally unsound.” (She also included the 2012 Supreme Court ruling that upheld the legality of the Affordable Care Act in her list of unsound decisions.)
And don’t forget another landmark decision, Obergefell vs. Hodges, which legalized same-sex marriage in 2015 by a sliver on a 5-4 vote. Two years ago, after the court refused to hear an appeal from a Kentucky county clerk who cited her religious beliefs as the reason she would not issue marriage licenses to gay couples, Justices Clarence Thomas and Alito issued a blistering statement against Obergefell itself.
“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the 1st Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” they wrote. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’ ”
How might the court want to “fix” that?
Oh, I’m sure you can guess.