Melissa Harris-Perry: On Wednesday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women's Health. The case centers on a Mississippi law which indisputably violates a 50-year constitutional precedent established in Roe v. Wade. By restricting abortion at 15 weeks, well before the viability of a fetus, the only way the court can uphold the Mississippi statute is by reversing or meaningfully altering the 1973 decision that asserted Americans to have a right to an abortion.
Now, to be clear, there are multiple frameworks for considering abortion. First, there is abortion as a personal consultation of capacity, conscience, and desire, that a pregnant person has within themselves. 60% of people who have abortions are already parents, people with a clear understanding of the realities of pregnancy and parenting. Also, there is abortion as a medical discussion of risk and health that a pregnant person may have with their doctor.
The CDC reports that just over 750 women died from complications related to childbirth in the United States in 2019. The risks of pregnancy are neither theoretical nor remote. Of course, there is religious conversation among those who share faith claims about whether abortion is allowed or prohibited.
The Pew Research Center finds considerable debate among people of faith and Pew data show that a majority of Americans in every major religious denomination, including Catholics, believe abortion should be legal in all or most cases. Only white evangelicals disagree with more than three quarters believing abortion should be illegal in most or all cases.
While personal, medical, and religious claims are all meaningful, appropriate and robust locations for discussion of abortion, right now, the decision about whether or not pregnant people have a right to terminate a pregnancy is not going to be decided in any of those spaces. The right to abortion is in the hands of nine individuals who will decide based on their understanding and interpretations of the Constitution, a fraught but foundational document.
because it's the court that will decide, many of the jurisprudential discussions will be conducted on terms wholly alien to ordinary citizens whose lives will be shaped by the outcomes. As The Takeaway seeks to understand this particular moment in our national history, we wanted to delve into the competing legal theories and constitutional claims that are guiding this decision.
We spoke with Elizabeth Wydra, President of the Constitutional Accountability Center and Carter Snead, Professor of Law at Notre Dame University. We focus on the 14th Amendment, which lies at the core of Roe v. Wade, passed by Congress in 1866 and ratified in 1868. The 14th Amendment establishes a definition of citizenship, and articulates the unabridged rights of citizens to due process and equal protection. Elizabeth Wydra started us off.
Elizabeth Wydra: It really gets to the 14th Amendment's guarantee of equality, liberty and equal citizenship stature. In the context of abortion specifically, the question when it comes to the constitutional protections under the 14th Amendment as it relates to abortion is whether one can enjoy that equal citizenship stature that's promised in the amendment. If [inaudible 00:03:40] cannot make such a personal decision as whether or not to have a child.
A decision that is so central to charting one's own destiny and making one's own choices about one's body.
Melissa Harris-Perry: She went on to explain the historical context of the 14th Amendment.
Elizabeth Wydra: The question really that the 14th Amendment was designed to answer is, "What does it mean to be free? What does it mean to be equal?" The drafters of the 14th Amendment were specifically responding to the horrors of slavery, and were looking at the ways in which rights and liberties were denied to enslaved people.
In the joint report that was used to draft the language of the 14th Amendment, they specifically talked about the brutal hallmarks of slavery, primarily the denial of rights over one's own body to make decisions about one's own body, and to have personal security and bodily integrity. The denial of rights of family and reproductive liberty, something that was brutally denied to enslaved women during that period, and something that the drafters of the 14th Amendment were keenly concerned about protecting in the 14th Amendment.
That type of concern, the idea that in order to be a free person, in order to step onto the public square as an equal, you need to have those rights of bodily integrity and personal liberty. That's deeply embedded into the 14th Amendment. Now, of course, it's not in the text, but the 14th Amendment is not intended to be a laundry list of rights. They specifically wrote in broad terms, words like equal protection, words like due process, words like liberty, privileges or immunities of citizenship.
Behind that language, if you read the history, it's clear that these rights of bodily integrity and personal reproductive liberty were included in that concept of what it means to be a free person. That question echoes today and echoed through the halls of the Supreme Court when we heard arguments about whether or not women would be allowed to make these decisions for themselves about their own bodies, and their own destinies in the year 2021.
Melissa Harris-Perry: Professor Snead introduced a very different way to understand the core values of equal protection at stake in the abortion question and offered an alternate reading of the historical context of the 14th Amendment.
Carter Snead: The reason the issue was so vexed and controversial is because there are contending incommensurable goods that are at issue here, namely the good of defending the intrinsic equal dignity of prenatal human life, of promoting the integrity of the medical profession and the ethical integrity of that profession, and promoting respect for life more generally. This is what we, in the context of public bioethics, sometimes called a vital conflict.
We have the conflict of incommensurable goods; the great goods that Elizabeth flagged, of course, and the great goods that relate to these other considerations. It's a very, very difficult question and framed in the context of this case, it becomes entangled with a question of constitutional interpretation. There's another contending mode of interpretation which would go as follows, which says, "The language of the due process clause certainly guarantees due process prior to the states' deprivation of life, liberty, or property."
In 1868, abortion was illegal in almost every state. The very states that ratified the 14th Amendment who were deeply committed to eliminating these badges and incidents of slavery and the terrible, terrible scars on our nation for that wickedness that we perpetrated since the founding up until the enactment of the fighting the civil war and the embrace of the 13, 14 and 15th amendments in 1868.
I think it's fair to say they drew a distinction between abortion and these other issues, because as I say, no one in 1868 thought that the due process clause forbade states from extending protection to the lives of unborn children. In fact, the very states that ratified the 14th Amendment, shortly thereafter-- Ohio, for example, embraced a very strict law in abortions, stricter than the one that had previously existed.
Elizabeth Wydra: I want to sit for a moment with the implications of the idea that what states allowed in 1868 should be a determining factor in what we allow now. Think of what that would mean.
Fortunately, the Supreme Court has explicitly rejected that idea, in both Casey, the decision that reaffirmed Roe and protected the right to choose and also in important cases like Loving v. Virginia, which struck down laws that prohibited couples of different races from marrying each other, something that certainly was also allowed by states at the time of the drafting the 14th Amendment.
Carter Snead: I certainly would never suggest that the practices, including the discriminatory practices of states in 1868 should be frozen in amber and recapitulated under a theory of constitutional interpretation. What I would say though is that the practices reflect the original public meaning of the words themselves and it wasn't until Roe v. Wade that any Supreme Court justice seriously suggested that there was a right to abortion.
The position that in response to and in opposition to the mode of interpretation that Elizabeth sketched out would be one that says that in fact, yes, those are in fact even have judges like Henry Friendly on the Second Circuit who's an iconic liberal and progressive judge who said, "Yes, there's a right to privacy. The right to privacy even includes things about reproductive decision making involving contraception as in Griswold.
It doesn't extend to the right to terminate a pregnancy, because a pregnancy involves countervailing goods of the prenatal life that is intentionally destroyed."
Melissa Harris-Perry: The 14th Amendment has proved a powerful tool for expanding the basic rights of American citizenship. Earlier this year, Netflix released a series exploring the long struggle to realize the aspiration of American equality. Hosted by Will Smith, Amend is a six-series deep dive on the 14th Amendment.
Will Smith: If you're born in the United States, you're a citizen. Pretty simple, right? Under the law, everyone in America gets this thing called equal protection. That means we all have the same rights and the same legal protection.
Melissa Harris-Perry: Now, since Will Smith was not available to talk us through the implications of the 14th Amendment for reproductive rights, we turned to legal superstars, Carter Snead, professor of law at Notre Dame and Elizabeth Wydra, President of the Constitutional Accountability Center.
Elizabeth Wydra: I really have to push back on the idea that the constitution says nothing about the right to choose an abortion. It's not just a question of privacy. It's a question of the entire Section 1 of the 14th Amendment, which protects against state infringement, the privileges or immunities of equal citizens. It protects liberty from state infringement. It protects equality.
It enshrines the equal protection of the laws. Now, the right to privacy is included in a lot of that. Equal protection is a part of the text of the 14th Amendment. This isn't something that's an implication. It's directly rooted in the text of the constitution.
When you look at the purposes behind those words, if you read the legislative history, the drafting history, the statements of people like Senator Jacob Howard, Senator Thaddeus Stevens, the people who wrote these words, it is clear that they intended to protect the right to bodily integrity and the rights and they talked about this extensively, the ways in which it was denied to enslaved people the right to choose whether and when, and with whom to have a family.
Now, just like the right to speech, the right to free speech protected in words of the constitution also includes the right not to speak, the right to decide whether and when and with whom to have a child also includes the right to decide not to have that child. The reason why I think it's important not to just dismiss this constitutional text in history, one, it's how judges decide cases so it's important in that respect.
I think it is a powerful reminder to us as Americans that when we faced this question of, "What does it mean to be a free person? What does it mean to an equal person and how are we going to protect that in the constitution?" we made the choice to broadly protect liberty and equality and the ability to come as equal citizens into the public square.
Included in that was this idea that in order to do that, we must be able to make decisions about our own bodies and about our own destinies to chart our own course as part of what it means to be an equal participant in society. That is an important moment in history that I think has been overlooked in a lot of this debate and it's important because it shows that this question of being able to control these decisions one's self is inherent in what it means to be free.
Carter Snead: Yes, of course, whatever we can do to help advance the good that we're talking about in terms of the equal citizenship of women, their equal participation in the social and economic life of the nation, we should do. The question of abortion presents a question of, "Is this mechanism, the mechanism of abortion, something that, first of all, the constitution creates a right to, for the purpose of realizing those goods?
Is the question of abortion presenting a mechanism of realizing these goods that creates a conflict between those goods themselves and what the mechanism entails namely the of life prenatal life?" That's the question.
One could readily agree that the 14th Amendment's structure, logic, et cetera, means to secure the equal citizenship of women, means to advance all the goods that Elizabeth has so eloquently described, but also say that the question of abortion just creates a distinctive problem in that the means of trying to secure those goods involves a practice that is that involves a kind of intentional killing of another being. That's the problem. That's why people disagree.
I can only speak for myself, but if we were simply saying, should we do everything we can consistent to promote women's equality, equal citizenship, equal stature, I would say, of course, that's right. Yes, absolutely, we should. Then if you say, but should that include the intentional killing of innocent beings?
I would say, well, no, I would stop there. I would say that's fact not something we should do, but that's a policy conversation that I think we should be able to have amongst ourselves and I don't think the constitution settles that particular very specific, very difficult conflict.
Justice Brett Kavanaugh: The other side would say that the core problem here is that the court has been forced by the position you're taking and by the cases to pick sides on the most contentious social debate in American life and to do so in a situation where they say that the constitution is neutral on the question of abortion, the text in history, that the constitution's neither per a life nor pro choice on the question of abortion. They would say, therefore, it should be left to the people, to the states, or to Congress.
Justice Sonia Sotomayor: Counsel, there is so much that's not in the constitution including the fact that we have the last word, Marbury v. Madison. There is not anything in the constitution that says that the Supreme Court is the last word on what the constitution means. It's totally novel at that time and yet what the court did was reason from the structure of the constitution that that's what was intended.
Here in Casey and in Roe, the court said there is inherent in our structure that there are certain personal decisions that belong to individuals and the states can't intrude on them.
Melissa Harris-Perry: Justice Brett Kavanaugh and Justice Sonia Sotomayor during Wednesday's oral arguments at the Supreme Court. Now, we're picking up on our conversation with Elizabeth Wydra, President of the Constitutional Accountability Center and Carter Snead, professor of at Notre Dame.
Carter Snead: It seems to me that it's impossible to talk about this issue as a constitutional matter, as a policy matter without describing the conflict of interest that instantiate this problem. The very deep and important issues of equal stature for women and the right to plan their own future to pursue their own future without unjust and unfair incumbrances imposed by the state.
As I say, on the other side we have this countervailing-- and it is a state interest, but the state interest is focused on protecting prenatal human life and gendering respect for prenatal human life. It's not merely the state's interest in an abstract sense. It's the state's interest in the prenatal life that is destroyed in an abortion. The problem is obviously abortion is such a sui generis issue.
The question is, "Does the constitution in making it possible for us in protecting us in our equal citizenship stature, does it include the mechanism of abortion as the means to that end?" I think that's the fundamental disagreement. I think those who, my own view and the views perhaps of some of the justices, who knows, we'll find out, is that the constitution itself does not include abortion among the many important tools that we have at our disposal to realize our equal citizenship stature.
Elizabeth Wydra: The liberty and equality that is protected in the 14th Amendment is the liberty and equality of that pregnant person and that's where the right to access abortion is key. Now, what the court is trying to do is to say, "Okay, recognizing that there's a state interest to some extent in the unborn life."
In the medical profession, the law has not-- despite some suggestions by Justices Kavanaugh and I think I heard it for and Justice Barrett as well, the suggestion that you're weighing a fetal personhood right versus the pregnant person's right, the law has not actually articulated it yet in that way. There are probably people who would like to see it go in that direction, but that's not actually the way that it works right now.
Centering the person who is pregnant and thinking about the way in which their equality and liberty is necessarily impinged by a forced pregnancy, by not being able to make this decision, I think is really important. I think it also focuses us on the consequences of this decision because if we end up with a patchwork of liberty, which is the way that abortion access would work in this country if Roe is struck down.
Right now, Roe protects nationally a right to choose abortion before viability which is generally about 20-24 weeks, there will be states that still protect that right. There will be many states like Mississippi and other states that have trigger laws on the books that will restrict abortion as soon as Roe is overturned. That's why the constitution took some of the most important rights and liberties away from state political decision making and enshrined them in the constitution.
We didn't have a patchwork of liberty so our constitutional freedom and liberty did not depend on the states in which we live, our zip codes, how much money we have, or our ability to travel out of state. That I think is something that should be centered not just when we're talking about the constitutional right and interpretation, but in talking about the real world lived consequences.
Melissa Harris-Perry: Our thanks to Carter Snead, professor of law at Notre Dame and to Elizabeth Wydra, President of the Constitutional Accountability Center.
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