Recently, a majority on the Supreme Court overturned Roe v. Wade, which for nearly 50 years recognized the right of women to decide whether they would continue a pregnancy or not during the first trimester, a right supported by 60–70% of Americans. How could this happen?
It was simple: Republican presidents deliberately chose six justices for the Supreme Court who planned to overturn Roe v. Wade. During confirmation, those candidates misrepresented their positions on that case and were confirmed.
The challenge for the five justices determined to overturn Roe v. Wade? How to find a legal excuse for doing so. The “solution”? Declare that the Fourteenth Amendment right to liberty, the legal foundation for Roe v. Wade, only enshrined rights existing in 1868!
The problem: The Supreme Court invoked the Fourteenth Amendment to end racial segregation in schools, end the prohibition of interracial marriage, end the prohibition of use of contraceptives, and recognize sexual activity between consenting adults and marriage as private matters.
Without those decisions, the segregated schools attended by Clarence Thomas would still exist. The marriage of Clarence Thomas to a white woman could be illegal and even a crime. Women, including Amy Coney Barret, could be denied a license to practice law (the Supreme Court so held in 1873). And what about the rights of all Roman Catholics, like Justices Roberts, Thomas, Alito, Kavanaugh and Barrett, to live free of religious discrimination?
I do not believe Americans are willing to turn the legal clock back to 1868. Nor should they be.
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