Make America Whole Again

In 1857, the United States Supreme Court in Dred Scott v. Sandford ruled that our Constitution was not meant to include Black people as citizens regardless of whether they were enslaved or free.

People of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States,” wrote Chief Justice Roger Taney for the seven-member majority.

The decision was backed with a long list of state and local laws at the time the United States Constitution was drafted in 1787, meant to prove that a “perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery.”

The decision, which was meant to settle the “slavery issue,” instead inflamed it.

“A house divided against itself cannot stand,” said Abraham Lincoln in a speech the next year, in 1858. “I believe this government cannot endure, permanently half slave and half free.

“I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing, or all the other.”

A bloody Civil War was fought to settle the question. In the Reconstruction that followed after Lincoln’s assasination, Congress passed the Fourteenth Amendment to the Constitution.

The first section of the amendment is one of the most litigated parts of the Constitution:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Not only did this amendment rectify the harm caused by the Dred Scott decision, but it became the center of a number of landmark cases on a wide variety of issues including Brown v. Board of Education on school segregation, Reed v. Reed on gender discrimination, Obergefell v. Hodges on same-sex marriage — and of course Roe v. Wade on reproductive rights.

Two weeks ago, ​​Politico published a draft majority opinion, written by Justice Samuel Alito, stating that the United States Supreme Court would strike down the 1973 Roe v. Wade decision that guarantees federal constitutional protections of abortion rights.

The center of Alito’s argument turns on the Fourteenth Amendment.

“The Constitution makes no reference to abortion,” writes Alito, “and no such right is implicitly protected by any constitutional provision including the one on which the defenders of Roe and Casey chiefly rely — the Due Process Clause of the Fourteenth Amendment.”

Alito concedes that the provision has been held to guarantee some rights that are not mentioned in the Constitution but he asserts any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” citing a 1997 case that denied the right to assisted suicide.

Like Taney’s 1857 Dred Scott decision, Alito’s draft — the text is 67 pages and ends with another 21 pages of appendices — attempts to use antiquated laws to bolster the current decision. While Teney’s list of 1787 state and local laws is meant to show slavery was intended by the founders of the nation, Alito’s appendices of bygone state laws criminalizing abortion are meant to show the criminalizing of abortion is inevitable.

The New York State law from 1828 is in Appendix A, which lists state laws criminalizing abortion that were on the books in 1868, the year the Fourteenth Amendment was adopted.

Any person administering a drug or using an instrument, the 1828 New York law said, “on any woman pregnant with a quick child” — that means a fetus whose movement in the uterus could be felt, usually between the 16th and 18th week of pregnancy — unless “necessary to preserve the life of such woman,” would, upon conviction, be jailed for up to a year, fined up to $500, or both.

Compared to some of the trigger laws states have ready to pass if the Supreme Court does follow Alito’s draft and overturn Roe v. Wade, New York’s century-old law is a good deal more liberal. The fetus isn’t considered viable until much later in the pregnancy, there’s an exception made to save the life of a pregnant woman, and the person carrying out abortion isn’t subject to murder charges but rather faces up to a year in jail and a fine.

But Alito is missing a far more important point: Democracy evolves.

Are we, for example, going to turn back women’s right to vote because women weren’t explicitly named in the Constitution? Our governing document was framed by white, land-owning males. Are we going to revert to only allowing them the privileges of life, liberty, and property?

Will we turn back racial desegregation? Will we turn back gender equality? Will we turn back same-sex marriage?

All of these, just like Roe v. Wade, centered on the high court’s interpretation of our Fourteenth Amendment.

Equally troubling is the path forward outlined by Alito. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” he concludes. In overturning Roe v. Wade, he writes, “We … return that authority to the people and their elected representatives.”

New York State Governor Kathy Hochul announced last week that the state will immediately spend $35 million to expand access to abortions and protect providers, welcoming “with open arms” women from other states seeking abortions.

At the same May 10 press conference, New York State Senator Liz Krueger, who chairs the finance committee, spoke of the importance of helping “abortion refugees” and said they would be disproportionately low-income, young, and women of color.

In a Wall Street Journal opinion piece on May 12, Hochul went further, urging, “The best way for companies to send the message that they value the health and well-being of their workers is to operate in a state that does as well.” 

Meanwhile, 26 states are poised to adopt laws criminalizing abortion, some with penalties for murder.

Since the leak of Alito’s draft, public opinion on the Supreme Court has become as divided as with the other branches of government: 65 percent of Republicans approve of the court while just 12 percent of Democrats do, according to a May 12 Monmouth poll.

The same poll showed that nationwide, opinions on abortion have remained the same with 8 percent of Americans saying it should always be illegal.

With Alito returning to the states the decision on abortion, we are profoundly troubled contemplating what other turn-backs may follow. Will we soon have states where gay marriage is criminal? Where interracial marriage is criminal? Where use of contraceptives is criminal? Where transgender people have to pretend, for fear of prosecution, to be the gender they were assigned at birth?

All citizens of the United States, not just those living in certain states, must be ensured the liberty guaranteed by our Fourteenth Amendment.

As Lincoln said, “A house divided against itself cannot stand.”

More Editorials

  • A job is a ticket to society. And people with jobs, part of a long line of immigrants enriching our nation over centuries, rather than relying on a social safety net, help to make it stronger — they contribute, which in turn protects others who need it.

  • This current focus on harm reduction rather than solely on abstinence is a welcome one. After all, addicts can’t come clean to lead productive lives if they are dead.

The Altamont Enterprise is focused on hyper-local, high-quality journalism. We produce free election guides, curate readers' opinion pieces, and engage with important local issues. Subscriptions open full access to our work and make it possible.