The Supreme Court’s leaked draft opinion overturning Roe v. Wade will most assuredly leave the future of abortion rights up to the states to legislate. Today, 23 states currently restrict access to abortion. Thirteen have trigger laws in place automatically banning it once Roe is overturned. Sixteeen states already protect access to abortion, but 11 states have yet to establish a law either way. Unfortunately, this ruling is more likely to disproportionately disadvantage people with fewer financial resources. Apart from Colorado and Illinois, the states that do protect abortion rights are coastal. If someone is low on funds and seeking an abortion, they might have difficulty traveling to coastal states if they’re limited to ground transportation.
It’s not a coincidence that states restricting abortion are also among the poorest. In fact, the top nine richest states, correspond to the blue states with laws in place protecting access to abortion.
If left unchanged, Justice Alito’s draft, could have negative consequences for other similarly decided cases. Justice Alito insists that the right to privacy is not implicitly mentioned in the Constitution. According to him, it is not a constitutional right.
His opinion raises the question: can same-sex marriage be overturned as well?
Justice Alito’s constitutional dogma
We must first understand—or attempt to anyway—Justice Alito’s constitutional dogma. He believes that the words in the Constitution have specific meaning and that meaning doesn’t change. Fifty-five white men from 12 states (Rhode Island didn’t send representatives to the Constitutional Convention) came together in 1787 to frame our Nation’s future. Justice Alito contends that what was written then cannot be interpreted in any other way than what the framers meant at the time. Unfortunately for those of us not represented at the Constitutional Convention—non-whites—we must remain with their feet on our necks. At least that’s how Justice Alito sees it.
Justice Alito’s method of interpreting the Constitution is known as originalism. In his view, a right is only Constitutional if it is either implicitly mentioned in the text of the Constitution or if it’s “deeply rooted in our Nation’s tradition.” Therefore, in his mind, rights won by arguing due process and equal protection clauses under the Fourteenth Amendment such as abortion, contraception, and same-sex marriage, to name a few, are not guaranteed rights under the Constitution.
Constitutional Amendments
The originalist theory is a bit wishy washy for me. No—it’s utter nonsense. For one, women, Black people, Indigenous Americans, or any other minority—immigrants included—were never taken into consideration, represented, or consulted with at the Constitutional Convention. Thus, non-whites weren’t given any rights under the constitution until the Thirteenth Amendment, which abolished slavery.
When Justice Alito says that same-sex marriage is not “deeply rooted” in our tradition, I say, yeah, no shit. That’s because up until 1987 homosexuality—later codified as sexual orientation disturbance—was listed by the American Psychiatric Association in the DSM as a mental disorder. Although there is proof that LGBTQI+ people existed before Ancient Rome, being out was dangerous when the Constitution was signed. In essence, we were deeply hidden in our Nation’s roots.
And although Article Five allows for amendments, the electorate is not fairly represented by the full Senate. Their vote is completely lopsided to favor the minority who live in predominantly ideologically conservative states.
To add a constitutional amendment, Congress first must pass a proposed amendment by two thirds majority—in both Houses. After this, it must be ratified by three quarters of the states. To ratify an amendment guaranteeing the right to an abortion within, say, twenty weeks, 38 states must also pass it. That’s highly unlikely considering that 23 states already restrict abortion in some form. No, those states probably won’t ratify an amendment to the Constitution that gives people an abortion option. By the same token, they also won’t ratify an amendment that grants us the right to marry.
Elections and why they matter
Let’s return to my earlier point about how the Senate disproportionally represents us. Here’s why: every state is represented in the Senate by two elected officials. So, for example, California—with a population of nearly 40 million—has the same two votes in the Senate as South Carolina, which barely squeaks past five million residents. This is extremely unfair because more than 60 percent of the total population in the country favors some form of access to abortion as well as LGBTQ+ rights. This is also why the electoral college is total rubbish.
But why does the US Senate matter? Because the Senate confirms the President’s Cabinet and US Supreme Court Justices, as well as courts of appeal and district court judges. These judges decide whether legislation is constitutional. So less populated states can ultimately hold up, or even outright deny, the confirmation of a Supreme Court Justice.
Again, who cares? You should care because if, like most Americans, you voted for the first Black President of the United States, you might remember that the Senate—which had, at the time, a Republican majority—refused to even hold a confirmation hearing for President Obama’s last Supreme Court Justice nominee, Merrick Garland. Consequently, Trump—immediately after taking the oath of office—nominated his first Supreme Court Justice. Fair? No. This is why elections matter. And while we can’t affect change in other states with our vote, we can advocate for it by helping to elect better candidates in said states.
Landmark civil rights cases
To add insult to injury, most of the cases in Justice Alito’s crosshairs are civil rights cases that had applied either the due process clause or the equal protection clause of the Fourteenth Amendment. Some cases applied the “fundamental right to privacy” that is implied in the Bill of Rights. Such is the case for the right to contraception in Griswold v. Connecticut.
Loving v. Virginia applied the equal protection clause to win the right to marry someone of a different race. And that case was subsequently used as precedent for Obergefell v. Hodges, which grants same-sex marriage.
It will be like a domino effect. To unravel some of these cases is to unravel almost all of them. And unfortunately for us, with more than 24 red states, going the Constitutional Amendment route is not optimal at this point.
The future of due process and equal protection cases
I was at our annual partnership marketing workshop when there was a commotion outside the room. A colleague, who himself was hosting an LGBTQ workshop in another room, was literally sounding the alarm. He burst through the doors each of the workshop’s breakout rooms to inform us all that the long-awaited ruling of the Supreme Court case, United States v. Windsor—the first of two important same-sex marriage cases—had finally been published. It was June 26, 2013, and as I sat in my chair listening to his jovial news, my heartbeat reverberated throughout the room.
I came home at the end of the workshop, got on one knee, and asked, no, commanded my then life partner (that’s the term we had been using) of nearly a decade, to marry me. We were married in Vermont the following summer. At the time, Florida banned same-sex marriages. Windsor set off a chain reaction of rulings that eventually led us to national recognition of same-sex marriage.
The Windsor case had applied the Due Process Clause of the Fifth Amendment. Two years later, Obergefell v. Hodges—applying both the Due Process Clause and the Equal Protection Clause—struck down all other state bans on same-sex marriage.
The difference between the Fifth and Fourteenth Amendment Due Process clauses
The first ten Amendments to the Constitution are the Bill of Rights. Under the Bill of Rights, the Fifth Amendment not only gives us the right to remain silent, but it also grants us due process of the law (fairness) in matters of the Federal Government. And under the Fourteenth Amendment—defining citizenship rights—we gain due process and equal protection of the law in all matters of the state. In the text, both Amendments state that a person shall not be “deprived of life, liberty, or property without due process of the law.” However, the Fourteenth adds the provision: “nor deny any person within its jurisdiction the equal protection of the laws.”
Why is this important? When applied to court cases, it could mean the difference between the rights of one citizen versus another. Why shouldn’t I be protected equally as other citizens under the laws in my state? Some civil rights have been won applying these clauses.
Protecting our life, liberty, and property
Many laws are written and passed to protect life, liberty, or property. However, some laws ban a certain sector of the population from enjoying these protections. Those are the laws we must fight to remove. Today, red states are jumping on board with Florida, passing laws restricting class discussions or teachings on subjects pertaining to race and the LGBTQ community. Why?
It’s important to learn and understand, even at a seemingly young age, the wrongs of the past. That includes slavery, systemic racism, Jim Crow era laws, LGBTQ+ rights, immigration, voting rights disenfranchisement and the like. Because if we don’t teach these subjects from an early age, we won’t fully understand the consequences of depriving a people the right to determine their own lives, futures, and livelihoods.
And while discussions about gender identity or sexual orientation may seem like a topic better suited for high school aged students, it’s important to note that humans understand the idea of gender at a very early age; we’ve been teaching it to them since they were born. Furthermore, teaching a young child to respect their peers, regardless of how different they seem to be may prevent the development of future bullies and, in the long run, maybe even save lives. That’s a lesson I would want my children to understand.
Because we might never come across the need for such lessons in the home. After all, our families are usually filled with sameness. Although the makeup of the family unit is evolving, most students live in homes with people of the same race, traditional gender identities, and sexual orientation. It’s usually out of the home where we experience diversity.
What we can expect from the Dobbs decision
Unfortunately, the makeup of the current Supreme Court is heavily tilted toward religious freedoms rather than civil liberties. I can’t help but think that our own Constitutional rights have been affected by the mere exclusion of Merrick Garland to the Supreme Court. I’m convinced this was due entirely to one man’s racist treatment of President Obama. One Senator, who represents Kentucky—a state ranked 26th in population—has altered the course of my own life and liberty. Is that fair? No. Revoking a right is always wrong.
Because of this, we’re stuck with the Dobbs v. Jackson Women’s Health Organization ruling overturning Roe v. Wade. Subsequently, my own liberties are in danger of being lost. Perhaps in a future court, we might be able to overturn the overturns. It might be a pipe dream to hope for a Constitutional Amendment that grants us the actual right to privacy. A right that no Supreme Court can take from us, regardless of its makeup.
But for now, if you’re in the minority in any way, as I am, I advise that you know and understand your rights. I have both the text of the Declaration of Independence and the US Constitution in my Kindle app that I can access with my phone or tablet. They’re not the most fun to read, but they are important. Read them and understand them, because one day, you might need them to fight for your own rights.
