TDD #28: What Does It Mean to "Codify" Roe? (Part 3)

What Did Roe v. Wade Actually Say? (Cont'd)

Welcome to another edition of The Dobbs Digest, a newsletter of Confessions of a Truthaholic.

Abortion may be the most divisive and intractable topic in contemporary American politics. And the inflammatory rhetoric, which reached boiling point after Roe v. Wade was overturned in the summer of 2022, isn’t simmering down anytime soon. But most of what I read and hear is sky-high on emotion but very low on facts, so bear that in mind as you scroll.

My sole purpose with this newsletter is to question the assumptions of the media narratives shaping abortion discourse and to unpack the actual issues raised in the courts to get us to a shared understanding of the reality on the ground.

If you’re new to this newsletter, please read our welcome post here so you’re in the know. So glad to have you here.

Codifying Roe

Welcome to my series on The Dobbs Digest: What Does it Mean to “Codify” Roe? Since Roe v. Wade was decided in January 1973, pro-choice politicians have been promising to “codify Roe,” but it hasn’t happened.

Will it ever?

Joining a long line of predecessors, in the 2024 presidential campaign, Kamala Harris promised to codify Roe if she was elected. To be specific, she usually says she intends to “restore the protections of Roe v. Wade.”

But does anyone have any clue what ”codifying Roe” actually looks like?

I mean, it’s a great talking point and sounds noble, but most of us would be hard-pressed to explain what this means, me included until a couple of years ago. And therein lies the problem. Ignorance, my friends, is not bliss when we’re dealing with real people, real lives, and an issue with life and death consequences.

Hence, this series …

Some preliminaries …

It’s quite easy to get caught up in or distracted by the drama of the abortion wars, but to understand its legal contours, we must know what the law says and we must discern the Constitutional justification for them.

Because America’s public education system doesn’t prioritize or promote civic or legal literacy, tackling the legal side of any issue, particularly divisive social issues, is extremely difficult. If I’m being honest, even those of us with special training find it challenging to navigate our outrageously complex legal landscape on the best of days.

But, we press on, because it matters.

And mattering is what makes them worth the effort. Right?

In this series of posts, I’m isolating the legal components of abortion from their political context so we can consider them at face value. I know it’s hard to be neutral on such a topic, but history, including legal history, is what it is and we’ve no authority to recast it in a more favorable, or less favorable, light. Like it or not, history is irrevocable, so we might as well deal with it on its own terms. We’re not characters in this story, so there’s no need to get hung up on what someone did or didn’t do—we just need to learn what happened.

It’s also wise to remember that “facts are stubborn things” (quoting John Adams). And, in every situation, there are good facts and bad facts, but we must know all the facts if we’re serious about understanding an issue beyond the surface.

Think of it this way … we can’t change what we don’t know, so school’s never out for the pro!

Let’s go to school, together …

If you missed it, be sure to read:

Part 1: What is Codification? and

Part 2: What did Roe v. Wade Actually Say? (The District Court)

… of the series before proceeding with this post. They provide necessary background!

What did Roe v. Wade (1973) Actually Say? (The Supreme Court)

We left off last time with a summary of the trial court’s decision, ruling in favor of Roe and against Texas.

Recall that Jane Roe sued the State of Texas claiming that Texas’ criminal abortion law was unconstitutional because it violated a woman’s constitutional “right to privacy” which she argued is protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution.

However, because neither the term “privacy” nor “abortion” appears in any of these Amendments, much less the remainder of the Constitution, the burden was on Roe to provide the source of that right to the court.

The Lower Court’s Decision (Quick Recap)

The lower federal court deemed the Texas law unconstitutional on the grounds that it violates a woman’s right to terminate a pregnancy by abortion which is protectable under the 9th Amendment of the Constitution. You can read the lower court’s opinion here. 

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Bottom line, Jane Roe won the case. But the saga of Roe v. Wade was far from over.

Both parties appealed the decision directly to the U.S. Supreme Court, where the case was heard not just once, but twice. More on this later.  

Roe at the High Court

It’s a big deal when the U.S. Supreme Court agrees to hear a case (it’s not mandatory for the Court to hear a case). Usually, although not exclusively, SCOTUS (Supreme Court of the United States) will hear cases that involve a matter of Constitutional interpretation (does the Constitution protect something or not?) or where there’s conflicting law in the country (some courts decide an issue one way, but others decide the same issue another way).

Roe v. Wade fell into the former category.

The question SCOTUS was asked to decide is whether the Constitution recognizes a woman’s right to terminate her pregnancy by abortion.

The Right to Abortion?

When the Constitution specifically protects a right guaranteed to the people, it means that neither Congress nor any state legislature may pass a law that encroaches, infringes, or otherwise impedes that right. Prior to the Bill of Rights (the first 10 Amendments to the Constitution), there is only one individual right enumerated in the body of the Constitution. Naturally then, most rights litigation is over the nature and scope of the Bill of Rights.

Let’s take a look at the text for a quick refresher.

The Bill of Rights

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Second Amendment: A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Third Amendment: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Seventh Amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Notice that these amendments apply to Congress only, not the individual states, since the Constitution establishes and ordains a national government. Each state has its own Constitution, which establishes and ordains that state’s government.

Over time, this dual-structure of enumerated rights became problematic when a state passed laws that aligned with its own Constitution, but was more restrictive than the national Constitution. Although those state laws were technically unconstitutional from the moment they were passed on the grounds they were too restrictive, it took a lot of time and money to challenge their validity through the courts. This generated a pretty intense power struggle between the national and state governments, particularly over slavery.

Here’s an example of this conflict playing out:

The Fifth Amendment restricts Congress from passing any laws that deprive American citizens of “life, liberty, or property, without due process of law.”

But if a state legislature (not Congress) fails to recognize this restriction voluntarily, its citizens could find themselves being denied their life, liberty, and/or property without due process of law (legal procedures necessary to ensure a fair trial, etc.).

The same goes for the Sixth Amendment which guarantees citizens a jury trial and assistance of counsel (legal representation)., among other things. As one can imagine, there were routine violations of these rights in both the north and the south prior to the American Civil War, including especially the question of whether slavery could continue to operate in the country and, if so, whether it could be expanded into new territories.

Reconstruction Amendments

After the War, Congress adopted and the states ratified three (3) new Constitutional Amendments (13th, 14th, and 15th Amendments) to rectify many of the issues that gave rise to the war in the first place. These were colloquially known as the Reconstruction Amendments, since they were part of the reconstruction process for readmitting the confederacy to the union and rebuilding the country after the war.

Let’s take a look:

Thirteenth Amendment (abolished slavery):

Section 1: 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.

Section 2: Congress shall have power to enforce this article by appropriate legislation.

Fourteenth Amendment (defined and granted broad rights of national citizenship by specifically applying the protection of several rights enumerated in the Bill of Rights to the states as well).

Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

SIDEBAR » This Section 3 formed the basis for a Constitutional “right to privacy” which includes the right to an abortion, specifically the “due process clause” rendered in bold text above.

Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3: No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

SIDEBAR » This Section 3 formed the basis for claims that President Trump engaged in an insurrection on January 6, 2021.

Section 4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Fifteenth Amendment (eliminated racial discrimination in elections).

Section 1: 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–

Section 2: The Congress shall have the power to enforce this article by appropriate legislation.

Recall that Roe alleged in her initial lawsuit that the Texas law infringed her right of “personal privacy” which was protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

Here they are again so you don’t have to scroll back up:

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Fourteenth Amendment (Section 1)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

I realize this is a lot of information and it doesn’t seem to make much sense. That’s because it doesn’t.

As noted above, not only is abortion not mentioned in the Constitution, privacy isn’t mentioned either.

So where exactly do we get a right to privacy, much less a right to an abortion?

The dirty details coming soon …

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Meanwhile, think on this for a moment … this next bit is really complicated, but it’s extremely important that we understand it, at least at a basic level, if we want to understand the legal elements to the abortion debate and why there’s so much vitriol (long before we get to the moral or ethical challenges in play).

Back next time with the bizarre path to a Constitutional “right to privacy.”

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In service to the truth, the whole truth, and nothing but the truth …

xo,

Kelley

January 13, 2025