The American legal system – as hailed and lauded as it can be — really is a fragile network of spiderweb-thin case law that can collapse in the blink of an eye. Moreover, the U.S. Supreme Court, the nation’s ultimate legal arbiter, increasingly seems to be a fragile institution in American government.
Earlier this week, we saw that happen with the leaked Supreme Court draft opinion that would overturn Roe v. Wade effectively eliminating a pregnant person’s access to medical services in 26 states. But beyond the obvious impact on abortion rights with this anticipated opinion, Justice Samuel Alito made clear that any civil right that is based on the Fourteenth Amendment is now at risk of repeal, as well.
But for those who thought Roe would never fall: do you still think desegregated public schools are still safe? Are you sure that the Supreme Court will continue to protect your marriage? Do you know if your home has a racially-restrictive covenant that would prevent you from living there?
Specifically, Alito writes, “[the Due Process Clause of the Fourteenth Amendment] has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.”’
In other words, unless a civil right is “deeply rooted” in American “history and tradition,” We the People do not hold that right under the Fourteenth Amendment. The assault, therefore, does not end with abortion rights.
The very basis of desegregation of public schools – Brown v. Board of Education of Topeka – relied on a Fourteenth Amendment argument, and the Supreme Court agreed then that “separate educational facilities are inherently unequal,” and therefore state laws mandating racially-segregated schools violated the Equal Protection Clause of the Fourteenth Amendment. Attacking the legal foundation of Roe further chips away at the basis for desegregated schools – a pattern we’ve already seen through the rise of the charter school movement and the legislative bans on teaching accurate racial history in Missouri classrooms.
Perhaps one of the most famous Supreme Court cases to come from St. Louis is Shelley v. Kraemer (1948), where the Court found that racially-restrictive covenants that blocked Black families from purchasing homes were unconstitutional under the basis of the Fourteenth Amendment and the Equal Protection Clause. Until that landmark decision, white neighborhoods and property owners could prevent Black, Latino, and Asian families from buying houses that included these restrictive covenants. But, because the enforcement of those racial bans required judicial action, the Supreme Court held that they violated the Constitution.
The Fourteenth Amendment’s Equal Protection Clause was also extended to the right to marry, regardless of your spouse’s race (Loving v. Virginia, 1967) or sexual orientation (Obergefell v. Hodges, 2015). Women didn’t have the right to access or use marital property until 1981, when the Supreme Court held in Kirchberg v. Feenstra that laws that bestowed sole control of marital property to a husband – therefore legally making married women second-class citizens – violated the Equal Protection Clause. Until 1994, women could be stricken from jury duty on the basis of their gender; the Supreme Court struck down that precedent in J.E.B. v. Alabama.
Our fundamental right to privacy from government interference was bestowed to us under Griswold v. Connecticut in 1965. This case served as the legal foundation for Roe v. Wade, and also relied upon the Equal Protection Clause. This law protects the right of married people to obtain contraception without police interference, investigation, or invasion.
All of these rights — and any right that is rooted in the Fourteenth Amendment – are not guaranteed, under Justice Alito’s proposed draft opinion. To make matters worse for women residing in this state, Missouri is a “trigger state,” which means that immediately upon the repeal of Roe v. Wade, women in St. Louis and across the state no longer have the right or the access to abortion services. An estimated half of all American women, upon the repeal of Roe, will lose both the right and the access to abortion in their states.
Practically speaking, the criminalization of abortion in Missouri – which is already happening – will not look like cops pulling over white women on highways as they cross state lines. Nurses will report women to the police for having a miscarriage, as we’ve seen happen in Texas when a Latina mother was criminally charged, months after her miscarriage. Police in the Emergency Room will ask to go through a miscarrying woman’s phone. Children’s Division may even show up at a woman’s home to take her other children. A Black woman in Mississippi already is facing second-degree murder charges for a birthing a stillborn child.
We live in a state where our legislators are actively working to make illegal a pregnant person leaving Missouri for a safe abortion in other states or countries where the medical procedure remains legal and unimpeded.
But for those who thought Roe would never fall: do you still think desegregated public schools are still safe? Are you sure that the Supreme Court will continue to protect your marriage? Do you know if your home has a racially-restrictive covenant that would prevent you from living there? Would you even be able to access your own bank accounts and assets, if the Supreme Court continues to unravel the rights that we have taken for granted?
If you cannot confidently answer those questions, in consideration of this week’s leaked Supreme Court opinion, then it’s time to take action.
As a practical matter, this blatant likely action by rigged hypocritical Republican Supreme Court justices, while not unexpected, might create a breaking point for enough outside the Trump electorate, who despite having mixed feelings about abortion, definitely don’t agree that abortion should be forbidden in all circumstances. We also know that the perpetrators of this far-reaching decision by a highly-politicized court will sieze this opportunity to further pursue their nefarious long-term end game that includes denying other long-established rights, including an absolute federal ban on abortion.