Imagine if every state were free to choose whether to allow blacks and whites to marry. Some states would allow such marriages; others probably wouldn’t. The laws would be a hodgepodge and interracial couples would suffer, legally consigned to second-class status depending on where they lived.
It seems like an unthinkable scenario in 2022. That’s because in 1967 the Supreme Court ruled unanimously that banning interracial marriage, as 16 states still did, violates the 14th Amendment’s guarantee of equal protection.
“Under our Constitution, the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed upon by the state,” the court stated in Loving v. Virginia.
More than half a century later, Loving is considered one of the great rulings of the court and yet it was not universally admired at the time. The southern states complied only reluctantly; Alabama did not repeal its ban on interracial marriage until 2000.
That is the point of having a supreme federal Constitution; the guarantees and rights in that document apply to all Americans alike, wherever they live.
A protest in Los Angeles, California against the US Supreme Court decision against abortion rights. Photo: AFP
The judicial system, and the Supreme Court in particular, exist to protect those rights when state and local authorities refuse to do so.
Many of those who oppose Roe v. Wade, and even some who support him, argue that the 1973 ruling cut short an ongoing debate about abortion, a debate that should have been allowed in states, many of which had long banned abortion.
This is one of the main justifications of the majority of the justices of the Supreme Court, ready to annul Roe and Planned Parenthood v. Casey, the 1992 decision that retained Roe’s core stake with certain restrictions.
The problem with this reasoning is that, as in Loving, leaving the matter to individual states and the political process means that millions of Americans will be denied their fundamental rights, in this case, the right of women to decide what happens inside their own bodies.
The draft opinion relies heavily on the lack of a mention of abortion in the Constitution and therefore argues that the document cannot be the basis of the right to terminate a pregnancy.
The Constitution doesn’t say anything about interracial marriage either, but that didn’t stop judges from finding in the 14th Amendment a guarantee that no couple can be treated differently because of the color of their skin.
In summary, constitutional rights are meaningless unless they are applied throughout the country. That is why the Supreme Court decided as it did Loving v. Virginia and Roe v. Wade. These rights are inherent in the Constitution, although they are not explicit in it.
The principle is clear: women and men should have the same control over their own bodies, as many Americans believed in 1973 and as most do today. And yet the right to choose whether or not to terminate a pregnancy is removed because five members of the current Supreme Court don’t like it.
Congress has repeatedly failed to codify the Roe and Casey protections into federal law despite various efforts, not only by Democrats but also by two Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska.
Top Democrats are now planning a vote on an abortion rights bill that they know has zero chance of passing. This is an empty gesture, coming after years of the Democratic Party failing to provide meaningful leadership on reproductive freedom despite clear warning signs that Roe was in danger.
Members of the United States Supreme Court, in an image from April 2021. Photo: AFP
Joe Biden’s Responsibility
President Joe Biden, as party leader, has an obligation to take seriously the threat to constitutional rights of Americans doing everything they can to protect access to abortion where it still exists.
The White House can encourage regulators to make it easier for women to obtain medication abortions and over-the-counter contraceptives, challenge state laws that limit access to medication abortions, and lease federal property to abortion providers. This would at least show a commitment to the issue, even if the legislative options are limited.
Usually, the outlook for reproductive freedom is bleak. In 13 states, “trigger” laws will ban abortions automatically or very quickly after Roe is repealed, as seems highly likely. In about a dozen other states, lawmakers are preparing to severely restrict access to abortions, if not effectively ban them, as Texas has already done without interference from the Supreme Court.
The result: within a few months, abortion could be illegal in more than half of the states. The anti-abortion movement doesn’t stop there. Efforts are already underway to impose a national abortion ban as soon as Republicans regain the White House and Congress, which could happen in 2025.
Anti-abortion activists marched this Friday in Washington. Photo: AFP
The battle in the states
For the foreseeable future, the real battle for reproductive freedom will be fought in the states, by ordinary Americans and their state and local representatives, who are trying to protect this fundamental right while they can. That means, first and foremost, ensuring more access.
California lawmakers are moving quickly to pass a package of bills that would make their state, the most populous in the country, also one of the most accessible to women seeking to exercise their reproductive freedom.
Those most in need of abortions are often the least able to afford them. States that want to protect reproductive freedom are helping pay for the procedure and the travel required to obtain it, costs that can easily run into the thousands of dollars and are prohibitive for many women.
Data from the Centers for Disease Control and Prevention shows that the percentage of abortion services in Illinois and New York provided to non-residents has already risen sharply over the past decade, a trend fueled by increased restrictions on abortion in other states. .
All laws are subject to being overturned when the political winds change, of course. That’s why abortion rights groups in some states focus on their own constitutions.
In New York, abortion-rights supporters, including Gov. Kathy Hochul, are pushing for a constitutional amendment to go before New York voters in 2024 to protect reproductive rights should the state Legislature fall into the hands of New York. Republicans. In Michigan, Governor Gretchen Whitmer last month asked her state’s Supreme Court to rule that the Michigan Constitution affirmatively protects abortion rights.
Finally, hepro-choice states are realizing they have to play strategic defense when it comes to protecting abortion providers, and possibly women having abortions, from states that reach beyond their borders to impose their anti-abortion laws on everyone else.
Decisions like these cannot be left in the hands of the states. A national standard is necessary. That national standard, at least for a few more weeks, is Roe v. Wade modified by Planned Parenthood v. Casey.
These two failures are not perfect, but for all their flaws, they have struck a delicate balance that reflects the public’s complex position on a morally tense issue. Most Americans don’t want these cases overturnedwith an overwhelming majority saying abortion should not be banned outright.
If you thought Roe v. Wade led to discord and division, he just waits until he’s gone.
This text was published by the Editorial Board of The New York Times