During the Supreme Court hearing on the Mississippi abortion law a few days ago, the Mississippi Solicitor General made the claim that since the Constitution did not specifically mention abortion that meant it was neutral on the subject, and therefore abortion should be left to the states to decide its legality. Justice Kavanaugh was quick to agree about this constitutional "neutrality".They were both wrong. The issue is women's rights, and the Constitution is never silent or neutral on individual rights of U.S. citizens.
Here's part of how Ruth Marcus makes this argument in The Washington Post:
The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. . . .
Abortion . . . is not mentioned in the Constitution. But that does not make abortion unique among constitutional rights. There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right tocontraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.
All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.
And so in 1972, extending its ruling protecting married couples’ right to obtain contraception to unmarried individuals, Justice William J. Brennan Jr. wrote, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”. . .
To say that the Constitution is “neutral” is another way of saying that women enjoy no protection, no liberty to decide what to do with their own bodies — or, more precisely, only so much protection as the state where they live chooses to grant them.
And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.
