The Reconstruction Amendments and the Basis of American Abortion RightsRoundup
tags: Constitution, abortion, legal history, citizenship
Peggy Cooper Davis is Shad professor of lawyering and ethics at New York University School of Law.
On Monday night, Politico reported that a Supreme Court made significantly more conservative by President Donald Trump’s appointments had voted in an initial conference on a Mississippi abortion case to overturn the line of decisions beginning with Roe v. Wade in 1973 that provide the right to have an abortion. The bombshell report also included a draft opinion that it said Justice Samuel Alito had written.
The Founders may not have intended in 1789 to secure for the people of the United States liberty to choose whether to continue a pregnancy. The framers of the original Constitution and the Bill of Rights are not known to have contemplated abortion choice as it relates to the balance between individual and family autonomy on the one hand and state power on the other.
But, the Constitution underwent a radical transformation after the Civil War. A document that had tolerated human bondage and been interpreted to deny Black people the privileges of citizenship was amended to embrace principles of human equality and republican freedom. The 13th Amendment secured the blessings of liberty by ending slavery. The 14th Amendment protected against unwarranted invasions of human liberty.
The lawmakers who implemented those changes did so in direct response to slavery’s heartless separations of families and to enslavers’ brutal practices of human breeding.
Speaking on the Senate floor in 1866 to the civil rights that the Reconstruction Congress meant to protect, Sen. Jacob Howard of Michigan, a member of the Committee on Reconstruction, noted that the enslaved had no right to be a spouse or parent in the eyes of the law and were “not at liberty to indulge the natural affections of the human heart” for children or partners. “What definition,” he asked, would you attach to the word freedom without these rights?
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