Abcarian: The right to abortion is deeply rooted in the Constitution and stems from the slavery amendment

Now that we’ve had a moment to digest the Supreme Court draft opinion leaked overturning Roe vs. Wade, one thing is clear: the words have lost their meaning.

The three new judges of the court, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, all said under oath in confirmation hearings, they believed the two main rulings in support of federal abortion law – Roe v. Wade and Planned Parenthood v. Casey – were stable laws.

“Casey,” Gorsuch tested, “is a stable law.”

Roe, Kavanaugh testified, “is considered a Supreme Court precedent. … It has been reaffirmed many times over the past 45 years.”


Robin Abcari

“Roe”, Barrett testified, “is a Supreme Court precedent authorized to respect under the doctrine of stare decisis.”

Were the candidates bullying? it’s questionable, but they certainly opened up to ridicule.

“They knew if they were honest they wouldn’t get the job, which I do to think is false testimony ” said late-night TV host Stephen Colbert. “But what do I know? I’m not a Supreme Court judge. I’m not a good enough liar. “

It should be obvious by now that none of this trio has ever considered Roe and Casey a fixed right, and they certainly did not respect the doctrine of stare decisis – Latin for “attending to things decided” – otherwise they would not have signed a draft opinion that discards a a right that has improved or saved the lives of millions of women who have exercised it over the last half century.

Another word that seems to mean nothing to the conservative bloc of the court: freedom.

“Freedom is a capacious term,” Judge Samuel A. Alito Jr. writes in the draft opinion. “As Lincoln once said: ‘We all declare for Freedom; but using the same word we don’t all mean the same thing. ‘ “

Well, if freedom can mean so many things, then I guess it really means nothing at all (unless it’s about allowing discrimination in the name of religious freedom, in which case Alito can tell exactly what it means.)

Alito’s “underlying message is that it is illegitimate to protect rights that are not clearly established in the text of the Constitution,” said David Gans, program director for human rights, civil rights and citizenship at the Constitutional Accountability Center. a think tank and legal aid organization dedicated to a progressive interpretation of the Constitution. “This is an opinion that is incredibly dismissive of a precedent that is fundamental. The writing exudes hostility ”.

No kidding.

«Until the last part of 20th century, ”writes Alito,“ there was no support in American law for a constitutional right to obtain abortion. Zero. Nobody. … Abortion had long been a crime in every single state “. (Law scholars say is very wrong about this.)

But why so many states enacted abortion bans in the mid 19th centuryth centuries?

Religious bigotry was a factor. White Protestant lawmakers were concerned about the drop in white Protestant birth rates relative to the high birth rates of Catholic immigrants. They cared about the “Catholic hordes” and their alleged loyalty to the pope.

And sexism, of course, was another factor. They believed that 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 towards Catholics and women?” he asks, as if such a thing were inconceivable.

In a law review article published in March, Gans wrote that in 1871 the American Medical Assn. A woman who wanted to have an abortion was described as a person “regardless of the path traced for her by Providence”, who “neglects the duties imposed on her by the marriage contract. She surrenders to her pleasures, but she shuns the pains and responsibilities of motherhood ”.

Many of the personal freedoms we now regard as fundamental are what Gans calls “rights to the heart and home” – such as abortion and interracial and same-sex marriage – and are not enumerated in the Constitution. They find their justification in the 14thth Equal protection clause of the amendment. the The 14th Amendment was written after the Civil War in particular to protect the rights of once enslaved Americans who were being re-legitimized by a series of restrictive and racist laws in the southern states. Fresh in memory were the horrors of slavery, where families were torn apart and women were forced to give birth to children born into slavery. Among the intentions of lawmakers, Gans said, was the protection of the physical integrity and integrity of the family.

“When they discussed it,” Gans said, “the members of Congress who wrote on the 14thth The amendment spoke of the right to have a wife, children and family. What definition of freedom doesn’t include these things? “

People who fear that toppling Roe and Casey is just the beginning of an American dark age for freedom are right to be alarmed. Alito’s draft opinion, Gans said, “is written in a way that encourages more attacks on fundamental precedents that guarantee fundamental rights.”

we I can’t take anything for granted.

Shortly before the Senate Judiciary Committee hearings for then Supreme Court nominee Ketanji Brown Jackson, Tennessee Republican Senator Marsha Blackburn criticized the landmark Supreme Court ruling of 1965 which legalized access to contraception as “constitutionally groundless”. (It also included the 2012 Supreme Court ruling which upheld the legality of the Affordable Care Act in its list of unsubstantiated decisions.)

And don’t forget another historic decision, Obergefell vs. Hodges, who legalized same-sex marriage in 2015 with a 5-4 vote. Two years ago, later the court refused to listen an appeal by a Kentucky County employee who cited his religious beliefs as a reason he would not issue marriage licenses to gay couples, Judges Clarence Thomas and Alito issued a sensational statement against Obergefell himself.

“By choosing to prioritize a new constitutional right over the interests of religious freedom explicitly protected in the 1st Amendment, and by doing so in an undemocratic way, the Court has created a problem that only it can solve,” they wrote. Until then, Obergefell will continue to have ‘disastrous consequences for religious freedom.’ ”

How might the court want to “fix” this?

Oh, I’m sure you can guess.