For nearly 30 years, I clung to Constitutional law like a religion. A federal trial lawyer, I drank and passed the Kool-Aid with conviction.
All of that changed in 2022 with Dobbs, when the Supreme Court threw out Roe v. Wade, not because science, facts or the law had changed, but because six religious zealots finally had enough votes to do it. Dobbs taught me that even Constitutional law is mutable and politics-contingent, that what it says depends on who’s doing the talking.
I have written enough — too much — about the legal infirmity of Dobbs, and how Alito, a lifelong misogynist, denied Equal Protection for women. But, with half the country supporting Trump, it seems many Americans don’t fully grasp why “letting states decide” is so flawed.
‘Letting states decide’ is a been there, done that losing proposition
On Fox News, Trump revealed his complete ignorance of American history. He made comments about the Civil War that illustrate why states can’t vote on a woman’s body any more than states can vote on human bondage.
In the interview, Trump doubled down on his previous thoughts about the Civil War, playing Monday morning quarterback 160 years later. He said he doesn’t think Americans should have gone to war over slavery or “states’ rights” to allow slavery, saying, “Lincoln was probably a great president, although I’ve always said, why wasn’t that settled, y’know? It doesn’t make sense [that] we had a Civil War.”
Trump would have settled the civil war the same way he and the right-wing hacks on SCOTUS think they have “settled” abortion: by letting states decide.
What the 14 Amendment requires
On June 8, 1866, after the south lost the Civil War, the 14th Amendment was passed by the Senate, granting citizenship to all persons including formerly enslaved people. It also granted all citizens equal protection under the law: no state shall “deprive any person of life, liberty, or property, without due process of law,” or “deny to any person within its jurisdiction the equal protection of the laws.”
The language explicitly extended freedoms under the Bill of Rights to the states: if the federal government had to respect the freedom in question, state governments had to as well, regardless of how a state’s majority voted.
The whole point of the 14th Amendment was to remove fundamental freedoms protected by the Bill of Rights from the whims of public opinion, because public opinion is easily manipulated. The 14th Amendment prohibits state laws that deprive any person of liberty or life without due process of law; it does not subject these rights to periodic revision as popular opinion fluctuates.
States don’t get to erase liberty interests protected by the Bill of Rights
Applying the same analysis to women, states don't get to force women to give birth by vote any more than they get to force humans into bondage by vote. At minimum, state forced birth sentences women to nine months of physical confinement, reduced earnings capacity for life, 18 years of financial burden, 18 years of restricted movement, lifelong and life-threatening medical complications, excessive childbirth pain likened to death by the electric chair, and, for too many women, death.
That is why the Supreme Court in Roe v. Wade, back in 1973, ruled that a woman’s decision to terminate her pregnancy is a “liberty” protected against state interference by the Due Process and Equal Protection Clause of the 14th Amendment. (This was without Republicans’ shiny new toys: interstate travel surveillance and state menstruation registries.)
When overturning Roe, Justice Alito dismissed 14th Amendment protection for women because “that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification.” In short, to reach their desired outcome, the court’s religious bloc threw out 50 years of substantive due process and equal protection precedent, and prioritized the Court’s contrived “classification precedent” instead.
Let’s not re-fight the Civil War
Subjecting women’s bodies and their freedom to state by state popular vote means they no longer have Equal Protection under the law; their fundamental liberty rights are different from one state to the next. Trump’s claim that he’d have “settled” slavery instead of going to war illustrates the ignorance of letting states decide abortion — we already fought a Civil War to decide that basic, fundamental rights cannot vary by state.
Studiously avoiding the polls, my faith in the Constitution is starting to heal, cautiously. I remain in awe of the genius of our founding documents. I still believe Jefferson and Washington, though flawed, were highly evolved for their time.
If every American voted, we would survive the malignancy that has spread among us. That’s why I supported Kamala Harris for president.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake Take, has no paywall.
