by Sarah Barnes
If you supported the decision to overturn Roe v. Wade and are elated that abortion is illegal in much of the United States, we have some bad news for you.
Your rights are at risk, too.
In Roe, the Supreme Court ruled a state law that permits abortion only to save the life of the mother violates “the Due Process Clause of the 14th Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy” (410 U.S. 114). The 14th Amendment, ratified after the Civil War (1868), states:
“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.” [emphasis added]
The Court upheld Roe in Planned Parenthood v. Casey (1992) and enunciated principles still relevant today:
“No change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for its overruling” (505 U.S. 835).
“Overruling Roe’s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law” (505 U.S. 836).
Thirty years later, a majority of our Supreme Court disparaged these conclusions in Dobbs v. Jackson.
The majority opinion written by Justice Alito is a sloppy interpretation of precedent, history and our constitutional framework. The justification for overturning Roe? The Constitution contains no mention of the right to abortion and it was not “deeply rooted” in history when the 14th Amendment was ratified.
Let’s look at our “deeply rooted” history. What else was not a right in 1868? Women could not vote. Native Americans were not citizens and tribal genocide was legal. Birth control was illegal. Women could not manage their finances independently. LGBTQ+ people were criminalized for existing.
It is ridiculously anti-democratic to interpret our constitutional rights based solely on the laws and values of white men from centuries past.
Regardless, this new precedent undoes any right or framework that relies on the 14th Amendment. If it wasn’t a “deeply rooted” right in 1868, forget about it. A lot of history and science can be ignored and societal advancement reversed using the logic in the Dobbs decision.
This is why your rights are under attack, regardless of your views on abortion. Many constitutional rights are derived from the right to privacy in the Due Process Clause.
Regrettably, it is not clear where that leaves us in West Virginia. When Roe was overturned, abortion became a felony overnight, criminalizing providers and recipients; however, there is currently a preliminary injunction preventing it from being enforced. Attorney General Patrick Morrisey has vowed to fight to make sure it is implemented.
We cannot rely on the courts. Legislative action is essential — and we have an election coming up.
Voting is the primary mission of the League of Women Voters. We believe that individual rights protected by the Constitution should not be weakened or abridged.
We value a society based on the voices and values of all. The values of one group cannot use the government to diminish the rights of others. Reproductive choices are a private matter that must be decided by individuals for themselves, not by the government.
To protect our rights, we must vote for a Congress that is willing to restore abortion rights nationwide and for state legislators who support abortion rights. Replacing embedded anti-abortion majorities in states is essential.
We encourage you to be a part of the fight to restore and protect our individual rights in West Virginia and elsewhere. Speak up and vote for those who truly believe that “Mountaineers are Always Free.”
