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A conservative Supreme Court is on the verge of rolling back the right for a woman to choose an abortion. This radical decision breaks from 50 years of well-established precedent and will put women’s rights and health at risk. While women will be the ones harmed directly, every American stands to ultimately lose. This decision is the proverbial canary in the coal mine for a court moving aggressively to restructure our society and way of life.
The idiom of the canary in the coal mine is well known. In early days, coal miners relied upon canaries as a warning system while they worked deep underground. If dangerous levels of carbon monoxide began to build, the canary would die quickly, alerting miners so they could get to safety. Regarding the constitutional status of our liberties, the canary is very much dead and we need to act accordingly.
Any day now, a decision is expected in the Mississippi abortion law case, Dobbs v. Jackson Women’s Health Organization. A draft opinion was leaked to the public in an unprecedented move. Written by Justice Samuel Alito, the draft stated that a repeal of the right to an abortion first articulated in Roe v. Wade (1973) is forthcoming. Specifically, the Justice writes, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision ... including the Due Process Clause of the 14th Amendment.”
So What is this Due Process Clause?
If the court formally adopts Alito’s draft, the decision will undermine established constitutional guarantees of individual freedom. Not only does it spell trouble for women’s rights and autonomy, but it portends problems for a host of other rights many of us take for granted.
This is incredibly alarming. How could the right to choose which is so fundamental to a person’s autonomy be rescinded after nearly half of a century? The scary answer is that many of the rights that we hold dear today once securely grounded in settled case law are now imperiled. Political conservatives control the Supreme Court, and they have made it clear they plan to roll back many of our constitutional rights.
In the mid-20th century, the Supreme Court recognized important substantive due process rights that were not explicitly detailed but flowed directly from the 14th Amendment. The Due Process Claus of the 14th Amendment states that “no person shall be deprived of life, liberty, or property without due process of law.” Through substantive due process, the court recognized constitutionally protected liberties including the right of interracial and same-sex couples to marry, the right to use contraception, and the right to an abortion. These are rights that most Americans view as sacred and immutable.
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However, the Alito draft opinion reverses established law and says that the 14th Amendment does not extend to abortion because abortion is not “deeply rooted in this Nation’s history and tradition.” The Alito draft reasons that the liberties intended to be included in the scope of the 14th Amendment should be determined, in part, based on what was legal at the time of the Amendment’s creation. Most states prohibited abortion at the time of the passage of the 14th Amendment. Hence, the draft concludes that the 14th Amendment cannot be read to include a right to an abortion.
For 50 years, our courts have held exactly the opposite. The 14th Amendment was created in response to slavery and its injustice, including the restraints placed on personal autonomy. There was a recognition following the Civil War that state action needed to be constitutionally restrained to protect a range of individual freedoms.
The 14th Amendment therefore broadly defined the principles of personal freedom without specifically listing them. Why? Because these principles were meant to be applied to many more situations and contexts than the drafters could possibly anticipate. In fact, Members of Congress who introduced the Amendment made clear in floor statements that it was meant to provide broad protections from governmental intrusion.
Most Americans Don’t Agree with Alito’s Interpretation
In contrast, Alito believes that because states restricted abortion in 1868, it was not the intention of the drafters to include the right within the protections of the 14th Amendment. Alito’s strange view would hold state bans of interracial marriage constitutionally permissible because many states prohibited interracial marriage at the time of the Amendment’s adoption.
That’s backwards. The purpose of the 14th Amendment is to strike down state laws to protect fundamental individual rights not to limit its reach based upon unconstitutional state action.
The aggressive posture of this decision suggests that the court is on the verge of a significant retrenchment of our individual freedoms. There is no reason to believe that the logic of the Alito opinion will be constrained by the subject matter of this case. The court’s willingness to deprive women of basic rights despite fifty years of precedent is a disturbing indication of things yet to come. More constitutional protections will fall, freeing states to do what they wish without any fear of a federal court standing in their way.
Without federal protection, we must fight harder than ever at the state and local level to elect leaders who believe in protecting civil liberties and individual rights. Wisconsin has a more than 170-year-old statute banning abortion and making it a criminal offense. Wisconsin Legislative Republicans plan to enforce and even expand the ban if Roe v. Wade is overturned.
Remember this during the fall elections and, importantly, in the spring. An April 2023 Wisconsin state supreme court race will play an outsized role in whether abortion is legal in Wisconsin. Wisconsin must now lead where the U.S. Supreme Court is retreating.
A Georgetown Law School graduate, Andrew Hysell worked for Democrats in Congress, where he focused on constitutional issues and administrative law, and also worked in the Wisconsin state legislature. He was born and raised in Wisconsin and currently lives near Madison.
