I am convinced that most people believe that the current uproar surrounding the leaked draft of the Supreme Court decision regarding Roe v. Wade is simply about abortion rights. Nothing could be further from the truth. Surely, abortion rights are at the center of this current controversy. However, once you start to peel the onion, the stakes are so much greater if this decision is allowed to stand.
One of the big arguments being used by the opponents of abortion is that Roe v. Wade is an overreach of the Federal government and the decision about abortion related laws should be done at the State level, i.e., another invocation of the concept of ‘States rights’ that we hear constantly from the Republicans.
The concept of ‘States rights’ dates back to the days of slavery. The constitution was ratified in 1789 and strengthened the Federal government but two amendments, the 9th and 10th, tried to make some distinction between the Federal government and state governments. The 9th amendment states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” and the 10th states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”1
The issue of States rights really blew up over the issue of slavery and ultimately led to the Civil War. The southern states refused to recognize the ability of the Federal government to have a voice about the issue of slavery in their states. They seceded and the result was one of the bloodiest conflicts the United States has ever been involved in. Ultimately the Confederacy was defeated and the United States remained intact. However, the issue of states rights has never really gone away.
The 14th amendment was ratified in 1868. It has five provisions. The first states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”2 You might remember that during the Trump presidency, many Republicans railed against this provision and wanted it modified or repealed as a way to deny citizenship to immigrants.
Another clause in the first section states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This greatly expanded the civil and legal rights of all American citizens by protecting them from infringement by the states as well as by the federal government.2
Finally, the “equal protection clause” (“nor deny to any person within its jurisdiction the equal protection of the laws”) was clearly intended to stop state governments from discriminating against Black Americans, and over the years would play a key role in many landmark civil rights cases.2
The second provision of the 14th amendment repealed the ‘three fifths’ clause in the original constitution which said that votes by black men only counted as three fifths of a vote and basically guaranteed the right to vote for all men over 21, regardless of race.
The third provision “gave Congress the authority to bar public officials, who took an oath of allegiance to the U.S. Constitution, from holding office if they “engaged in insurrection or rebellion” against the Constitution.”2 (Think about this in light of the events of January 6th!!!) Section four of the 14th amendment prohibited payments of any debts owed to the defeated Confederacy. Section 5 simply states, “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Interestingly, it wasn’t until 1925 that the Supreme Court ruled in, Gitlow v. New York, that the provisions of the 14th amendment were applicable to the states as well as the Federal government. The Gitlow decision marks the beginning of the incorporation doctrine, which extended the scope of speech rights and, later, most of the Bill of Rights.3
The equal protection clause of the 14th amendment has been the linchpin of many landmark Supreme Court rulings over the years: Brown v. Board of Education (desegregation); Griswold v. Connecticut (use of contraception); Loving v. Virginia (interracial marriage); Roe v. Wade (abortion); Bush v. Gore (contested election); McDonald v. Chicago (gun rights); Obergefell v. Hodges (same sex marriage).2
The Voting Rights act of 1965 was passed as a result of the authority conveyed to the Federal government under the 14th amendment – and the Supreme Court, under current Chief Justice John Roberts, gutted that decision which has resulted in the current spate of voter restriction laws being passed in Republican-controlled states.
If you look at the above list of landmark cases based upon the 14th amendment you get some sense of why this draft ruling leaked from the current Supreme Court is so controversial. This is not solely about abortion. There is a whole list of dominoes that are poised to fall undoing decades of court precedent regarding the rights of American citizens. If this Supreme Court decision on Roe v. Wade is allowed to stand, it will just be the first of many rights to be taken away from Americans.
Americans in this country need to wake up before it is too late. The country is rapidly becoming a country that will be ruled by white, fundamentalist Christians and a few very wealthy people unless people can really come to grips with what is really going on. That’s not hyperbole – that’s fact!
Welcome to Gilead! (If you don’t know what that means, I once again suggest you read, The Handmaid’s Tale – we are well on our way!)
I’ll need to conserve my energy today – my former party have become the American Nazi Party – I my opinion. Being retired, I will work until I must leave this country to defeat them. Like my grandfather did Germany. He had no trouble helping Lockheed Martin in Burbank during WW II – even though they would only let him help with aircraft wood model construction and not the real aircraft because of his birthplace. He had carpenter skills.