Let's not re-litigate the Civil War

We already know why "letting states decide" is a losing proposition

This is my last column before the election. I am as tired of writing about politics as you are tired of reading, thinking, and hearing about it. The stress of this make-or-break Democracy test feels cruel and unusual, cruel because of what’s at stake, unusual because it is unrelenting. 

As I see it, climate change, the rule of law, and abortion restrictions vie for top contenders in this election. Because they feel the most personal, I’m tuned into the latter two here, and they are related.

The personal is political

I grew up in a lawless household.  You name it, it happened, usually more than once. I was also raised Catholic, complete with Catholic schools, where I saw religion bent into a cruel and uncaring tool. The upshot is that I’ve never had much faith in organized religion, or in man’s fairness when no one is looking.

I found my faith at 23 when I read the Federalist papers.  In the mid 18^th century, when people were governed by a vengeful king’s whim, our founders conceived of a brilliantly simple, yet universally foreign, concept: that all men should be equal before the law. Washington, Jefferson, Jay and Hamilton had the insight into human nature to insist that governance by the rule of law was the only way to check oligarchs and the capricious violence of an indulged king.

I got religion. For nearly thirty years, I clung to Constitutional law like the life raft it was, at least for me. As a federal trial lawyer, I drank and passed the koolaid with conviction.

I believed… until Dobbs

All of that changed in 2022 with Dobbs, when the Supreme Court threw out Roe v. Wade, not because the law, science or facts 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 recently reinforced his complete ignorance of American history and the Civil War, his comments inadvertently illustrating 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. A Monday morning quarterback 160 years later, Trump said he didn’t think Americans should have gone to war at all, suggesting on Fox that slavery and states’ rights weren’t worth dying over. He said to half of the country that, “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’s comment revealed that he has no idea whatsoever what American civil liberties are all about. He doesn’t understand the legal and societal changes forged from the Civil War’s outcome. Trump would have “settled” the civil war the same way he and his Republican hacks on SCOTUS “settled” abortion: by letting states decide.

What the 14 Amendment means

On June 8, 1866, after the south lost the Civil War, the 14^th A was passed by the Senate, granting citizenship to all persons including formerly enslaved people freed under the 13^th A. The 14^th A 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 protectionof the laws.”

Language in the 14^th A 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. This meant states could not “vote” to keep slavery, because under the 14^th A, black people were entitled to the same protections under the law as white people, regardless of how a state’s majority voted.

The whole point of the 14th A 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 A 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 Equal Protection 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 9 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 by some 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 considering Republicans’ shiny new toys: interstate travel surveillance and state menstruation registries.)

When overturning Roe, Justice Alito dismissed  14^th A 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, women’s lives be damned.

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 belief 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 fundamental human freedoms cannot vary by state.

Meanwhile, in the run up to November 5, another woman has died from Trump’s “let the states decide” abortion ban. Husbands, brothers, boyfriends and fathers are finally catching on.

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.

I also believe that if every American votes, we will survive the malignancy that has spread among us, and that we will come out better equipped to defeat the next Jefferson Davis.

Kamala Harris for president. Obviously.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense.