The Supreme Court’s overturning of Roe v. Wade raises a serious question of what we mean by the term equality generally and equal protection under the law specifically. The Equal Protection Clause has been interpreted to mean that where individuals enjoy defined and/or recognized rights, no state can infringe upon them because that would be a violation of the Equal Protection Clause. It also means that you cannot create invidious classifications.
The concept of equality, at least procedurally speaking, means that each person has equal standing before the law. No one person enjoys more rights than another, and one person’s vote doesn’t count more than another. Equality, unless defined in terms of equity, does not mean that we all have the same thing, or that outcomes will be equal. Let’s say two people graduate from the same class in college, and one pursues a career in finance and the other in social work. We know that the outcomes will not be equal. The one who pursued a career in finance will end up being far wealthier than the one who went into social work.
Do we then say that the outcomes were unfair? Not if both were free to make the choices they made. But what if the one in finance happens to have more natural endowments than the one in social work? Are the outcomes still considered fair? If we were simply talking about resources that one had at the beginning, the often bandied about remedy is redistribution. Redistributing intelligence is not really a possibility.
Given that, are these two people supposedly standing equally before the law really equal? Rich people and poor people are in theory equal before the law, but we know that in reality that isn’t true. Wealthier individuals charged with crimes can hire the best attorneys and jury consultants when poor people are at the mercy of public defenders’ offices. Poor people are more likely to take plea deals, even when they are innocent, just to avoid a long sentence should they be found guilty at trial. Arguably, the prisoner's dilemma discriminates more against poor people than wealthier people.
Because public officials are more likely to be responsive to wealthier voters than to poorer ones, we know that not everybody has the same vote. Ironically, the Fourteenth Amendment was designed to correct that problem. Overturning Roe does not end legalized abortion; rather it returns the issue to the states. Herein lies the fundamental problem.
On the one hand, the Fourteenth Amendment protects rights that are understood as such in the Privileges and Immunities Clause. This clause has always been understood to mean, for example, that a couple married in New York would be recognized as being married in Alabama. One didn’t lose one’s privileges by going to another state. Hence this may be a reason for why the Dobbs decision cannot be used as a precedent for overturning same-sex marriage. But it doesn’t mean that one who enjoys the right to an abortion can now go to Alabama and demand one because that person’s right have to be recognized. Part of the reason for this is that whatever rights are protected are negative rights and not positive rights.
On the other hand, the Equal Protection Clause of the Fourteenth Amendment is supposed to ensure that all citizens are treated equally, regardless of the state that one lives in. Now we are confronted with a situation whereby women in states like New York, New Jersey, and California will enjoy inherently more rights than women in states like Texas, Mississippi, and Alabama. And yet, that is what the Fourteenth Amendment was designed to do: correct the imbalance between the states.
We have heard a lot of talk about how the Supreme Court should not be concerned about outcomes; only law. This claim ignores more than two hundred years of American jurisprudence as the Supreme Court strove to remain in the mainstream of American public opinion. Why? Because the Court had, as Hamilton noted in The Federalist, neither the power of the purse nor the power of the sword. That is, it would have to rely on the good will of the other branches to enforce its rulings.
The Fourteenth Amendment was one of the three post-Civil War amendments, and according to conservative scholars was only meant to protect the rights of newly freed slaves. In fact, Judge Robert Bork in his confirmation hearing to be on the Court in the 1980s was clear that it was never intended to be used, as it was in Brown v. Board of Education, to desegregate the schools. Rather it was only designed to protect newly freed slaves. One can only imagine that Justice Alito may not completely disagree with Bork.
Let’s say for a minute that this is true. There is still an underlying assumption which goes to the heart of why it was passed in the first place. That is, the states were untrustworthy guardians of people’s rights and because of Federalism individuals could not be treated equally. So, we are back to where we started. With this ruling, we will be living in a country where individuals are not treated equally because some will have inherently more rights than others. So, while the Dobbs decision does not violate the letter of the Fourteenth Amendment, it certainly violates the spirit.
But Justice Alito asserts that there is no established right to an abortion in the Constitution. At the same time, he would have to concede that there is no established right to life in the Constitution either. There are bases for inferring them. The Ninth Amendment makes it clear that any rights that were not thought of at the time of the writing of the first ten amendments are assumed to belong to the people.
A broader reading of the Fourteenth Amendment would have allowed for such an inference. Another basis would be the First Amendment. Does allowing one state to pass the most draconian anti-abortion law based on a group’s religious beliefs not violate the Free Exercise of Religion? Is the effect not to impose a religious position on others who don’t share that position. A state that legislates solely on the basis of the Catholic Church, for example, may not make an exception to protect the life of the mothers. But there are religions where the mother’s life comes first.
Justice Alito might respond that you cannot limit the rights of states to pass anti-abortion laws on the basis of rights that don’t exist. The flip side, of course, is that you cannot deny people rights on the basis of protecting life when the Constitution says nothing about life. The implications, however, are broader than simply the abortion issue.
Justices like Alito would think nothing of invalidating the rights of workers on the grounds that worker rights violate the property rights of owners. Remember, individuals with inherently more rights in one state over another may also be workers with more rights in one state over another. At the end of the day, if equality doesn’t mean the same thing across the country, it becomes nothing less than a farce to talk about “our democracy” because obviously some states will enjoy it while others do not.
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