The Mistake Democrats Will Make When Defending Abortion
The pending decision to overturn Roe v. Wade brings into stark relief a certain fact hiding in plain sight: as a nation, we have never made clear that women and people of color are full persons under the law, entitled to all of the same rights as white men.
When you go back and re-read the amendments to the Constitution, it sounds as if we’ve done that; but in the absence of a clear and incontrovertible statement to that effect, certain people have been free to chip away at the definitions enshrined in three key amendments and the interpretations thereof.
XIII
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
XIV
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.
XV
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
If all of the above conferred full personhood on women and people of color, why then did we need the 19th amendment or the Voting Rights Act or the still unratified Equal Rights Amendment? The simple explanation is that the above left enough ambiguity for governments to enact laws that abridged some of the rights enshrined in these amendments. The carveouts for people convicted of a crime created loopholes big enough to drive a bus through (especially given how much we love convicting people of crimes). If you go back to the original document, the definitions of terms like “citizen” and “person” were limited to white men, even if it wasn’t explicitly stated. That has never been amended.
And if the umbrella of protections does not fully extend to women and people of color, it definitely leaves out sexual minorities. We treat protections for reasons of gender identity and sexual orientation as civil rights, but they’re not clearly stated as such. They rest on interpretations of law and legislation. The prior interpretations of the 14th Amendment did extend protections the way they were clearly intended to be extended — Roe was a very reasonable ruling enacted by mostly Republican judges; but Republicans ain’t what they used to be, and as we’ve now seen, if you’re really patient and methodical and get the Right (read: incompetent and bankrupt) judges onto the bench, you can undo precedent. All it takes to undo legislation is a simple majority. Administrative protection of civil rights can be undermined simply by getting the Right president in office who declares that policies designed to protect previously disadvantaged groups are in fact racist.
Let’s acknowledge that there’s a certain validity to that point of view and turn it on its head.
I watched Democrats rail against this decision yesterday, and they couched their arguments in terms of harm to women and their right to abortion. This is a losing argument. There are too many people, when they hear that, who think things like this:
I would never get an abortion. [This is a true statement for 3/4 of women in the US.]
Only an irresponsible person would get an abortion.
Even if I needed an abortion, I would consider it a bad thing.
The state has a legitimate interest in protecting life.
The winning argument might go something like this: “The rights of all people to make private medical decisions must be fully defended. If states can abridge some rights to privacy, none are truly safe. Are you listening white men and white women who would never in their lives get knocked up, because you’re a good girl? Your rights aren’t protected by undermining those of others.”
Now, of course, this is a trap. The Right will agree and then argue that all government regulation is an infringement on personal liberty, even where a legitimate public interest exists. Take masks, for instance. If the state can’t regulate abortion, the Right will argue, then it can’t regulate vaccines and masks. If you take SCOTUS and that loony judge who overruled the federal mask mandate for air travel as a package, the Right in fact has argued it both ways: can regulate abortion, can’t regulate masks. Got it?
It’s a false equivalency. Abortion is actually a public good, same as masks and vaccines. Sociologists have attributed the decline in violent crime over the last several decades to the availability of abortion (at least in part). Forcing women to carry to term children they don’t want or don’t believe they can care for is never a good thing. Of course, rising violent crime is what the Right wants. The story of fear feeds other policy aims, like allowing the proliferation of guns to continue and even accelerate.
No, the rightist counter-argument would be nothing but bald-faced hypocrisy, but unfortunately, the Right has no problems with cognitive dissonance. They will (and do) argue out of both sides of their mouths all the time. They’ll obsess over a private email server, then turn around and be even more careless with their own government correspondence without even thinking twice. A certain presidential candidate had no problem saying immigrant rapists were destroying America while telling black people to take a chance on him, because what do you have to lose? “Hey, people of color! Take it from a racist — the Democrats aren’t your friends.”
At some point, Democrats will have to realize people like that aren’t engaging in good faith and start ignoring them. They need to take it to The People directly, with conviction and without apologizing for it, and make clear that it’s in the interests of white men and women to broaden the implicit definition of liberty. Many white men and women think: it won’t happen to me. I’m protected — and indeed, they are, but not explicitly.
Let’s take something closer to home. Do you engage in certain acts your jurisdiction might find obscene? Have you ever had a cosmetic medical procedure? The Constitution does not enshrine these things as rights. Who’s to say that conservative states won’t start to regulate private sexual behavior more broadly. Adultery? Vibrators? Boob jobs? Why not outlaw these things as harmful to society? Will the unspoken rule that the laws don’t apply to well-to-do white people protect you then, or could many states become theocracies in all but name? Could laws against sodomy (read: blowjobs) return? Do straight white people want to be able to give and receive cunnilingus without fear of government interference? If Mr. Grab-Them-by-the-Pussy comes to power again with a compliant court and complicit congress, maybe he’ll decree mandatory presidential liaisons for all 9’s and 10’s and burqas for 4’s and below. Look at Florida and Texas and Idaho. They’re already making it illegal to make straight white people uncomfortable by talking about racism, gender identity, and homosexuality. They’re letting private citizens sue other private citizens for certain acts. What other forms of thought and action will they be able to move to the far side of the line?
Absent a clear statement about privacy and universal personhood, it’s easier than people think to wind up on the wrong side of that line.
This is America, and the line has always been weirdly razor thin. We somehow walk a tightrope of being a country created on principles of freedom and liberty, implicitly limited to certain people. The line has expanded and trended towards decency, despite a history of awfulness; but occasionally it backslides, and we somehow manage to avoid letting it make us see ourselves as tyrants and despots, despite incarcerating so many of our own citizens, despite rounding up Japanese-Americans without a second thought during time of war, and despite moments like this when we decide certain liberties aren’t worth defending.
They are. The wider the line, the safer we all are. We just need everyone to realize it — even those who have benefitted from the way the line was has historically been drawn.
