If you want to blame Mitch McConnell or Donald Trump or your crazy uncle who still insists that Trump won, well, be my guest. You’re partially right. The truth is, regardless of what the leaked SCOTUS decision says, the majority fault for the lack of abortion protections at the Federal level rests on all our shoulders. (This is also true for any other civil liberties that rely on the 14th Amendment and the legal theory that it protects a person’s privacy.) Democrats have been too complacent that such a hot button issue would be fully protected by a Supreme Court decision and nothing else. Congress, as a whole, didn’t want to pick up the fight to codify Roe into law because, as usual, such a bloody legislative fight was seen as a career ender. So, we all convinced ourselves that the Supreme Court would never take away an individual right and freedom, that the 14th Amendment is some kind of magical elixir and that historically American governments haven’t found ways and legal reasoning to deny a person equal protections under the law or the ability to enjoy the company of whomever they choose, let alone have final say over their own person.
We are wrong. This Court is happy, willing and eager to obliterate any and all freedoms we’ve come to enjoy and rely upon that aren’t explicitly, or at a bare minimum implicitly, outlined in federal law or the Constitution. I’ll go so far as to say that even then any right, such as same sex and interracial marriage, is primed for the chopping block. Don’t think that Alito, Gorsuch, Thomas, Kavanaugh and Barrett aren’t telegraphing their end game. They, along with the entirety of the Republican Party, mean to come after every right and freedom we as a People enjoy that underpins and lifts our country as an open, inviting, inclusive and welcoming society for all. Any right that puts men and women on equal footing when it comes to reproduction and family planning. Your ability to love, be loved, marry and have or not have a family with whomever you please will come to an end with these five Justices.
As I read the 14th Amendment, and the Constitution as a whole, admittedly with no formal legal education, I fail to see how a person’s privacy isn’t protected, and therefore their ability and freedom to live with, marry, love and build a life with whomever they choose. Doesn’t this fall under “liberty”? If Liberty fails to encompass the ability of one to have autonomy over ones own body in the privacy of their own home and doctor’s office then the word becomes meaningless. Let us also not forget that the 14th Amendment follows on the heals of the 13th. They go hand-in-hand and even have a third companion, the 15th Amendment. These three buddies work together, further cementing equality under the law for any and all citizens.
Of course, the age old discrimination and misogyny of the American people, carried with them and their forbearers from the Old World, is alive and well in Alito’s draft (the fact that the latest leaks indicate that this first draft is the only draft says so much) and the fact that you have three other men and a woman (here I feel the need to point out that Justice Barrett is Catholic, like Biden, but unlike the current President has fully ingested and integrated the misogyny of her religious beliefs into her very self-identity and psyche) going along and not raising any concerns should really drive home my point that women in this country are still not conceived of as full citizens. How can they be when politician after politician seeks to remove fundamental rights and legal guarantees for minorities and women at every opportunity?
There are only two ways, in the short-term, we can head off the coming catastrophe: Congressional action and Constitutional change. While I also advocate for social change, this is unfortunately both a much longer road, though the most essential to ensure lasting equality, as well as the weakest. For without legal protections in place the winds of social change will inevitably blow the other way. One of the main reasons so many other Supreme Court decided Constitutional Rights are also at serious risk of being taken away, from same-sex marriage to the right to obtain and use contraception. The last few years should have made this abundantly clear.
That said, either of the political and legal routes requires that we Americans do what so seldom comes naturally, be politically engaged. This is something that we, the American People, are famously bad at. Until, of course, there’s a crisis situation. Well, folks, I know you’re all exhausted by Trump (who’s banging at the door to be let back in) and his cronies, but the fight for our collective better future continues. The imminent demise of an essential Federal Right is an unprecedented crisis, one that leads directly to a domino effect of other Rights that have brought us closer to becoming a More Perfect Union being obliterated, and one that I don’t believe the bulk of Americans truly appreciate.
You have to understand something very, very important, especially in light of what historical information the Republican Justices actively pursue to use when attempting to legitimize their very political partisan decisions. The Constitution, as originally written, did not include the Bill of Rights. I don’t believe that the failure of the Framers to include these rights in the original document was a mere oversight, an error in judgement that the rights and privileges later enumerated (and unenumerated) in the first ten amendments were somehow universally understood to just exist. A sort of baseline for polite political society. No, I’ve come to the conclusion, based on my understanding of American history as well as modern American affairs, that this was on purpose. Until, that is our Constitutional writers, promoters and signers realized that without what would be the Bill of Rights America would become just another Great Britain in short order. (Ironically, from where I sit, Great Britain is a more democratic and free society than we are, even with all those CCTVs).
Now, what this means is that while the Bill of Rights is seen as the secular world’s Ten Commandments they are, to this Court and the fascist-promoting, demagogue loving, tyranny-pursuing Trumpist Republican Party, secondary to all that came before. This, folks, is what we must change. The perception that the Bill of Rights, personal liberty and freedom, the right to privacy and the Supreme Right to decide what is best for one’s own life, are secondary, the Horses to the Pigs, of American Law and Order.
There’s another fight here, though it goes hand-in-hand with the push from the right to elevate Heterosexual White Male Christians above all others: the fight over Federalism. States’ Rights (*wink* *wink*) versus the power and authority of the Federal Government. Frankly, I thought this particular fight was done and dusted (as the Brits say) with the adoption of Federalism the Constitution frames. While we’ve come to rely on a footing of Dual Sovereignty, a delicate balance between the rights of the States to see to their own affairs and the rights of the American People and the power of the Federal Government to ensure those rights, it would appear that footing is much more precarious than I ever thought. This fight, which is really just an extension of the Lost Cause, must be resolved, otherwise the ongoing fights for equality and individual liberty will inevitably lead into another Civil War. Not just civil unrest, but a renewed push for States to break away from the country, to Balkanize the North American continent.
This brings me back around to the fact that we, the majority of American People, must become much more actively engaged in the political realm. We must be willing to head to the polls even in midterms, even for local, off-year elections. We must become supremely engaged and ensure that our representatives do what we elected them to do: represent us, the individual American citizen, and take measures available to them to protect our Constitutional Rights and Civil Liberties. Not their corporate and large private donors interests. Not their religious leaders worldviews.
Only by ensuring our voices, our wills, our desires, are heard at every opportunity, at every ballot box, will the idea of Personal Freedom, that the individual citizen is the Supreme Authority, finally have a definitive, solid path toward ensuring our individual Liberties and Freedoms. Only then will we all truly become Equal under the Law.