NEWARK, NJ – June 28, 2022 – The Supreme Court’s reversal of Roe v. Wade raises a serious question about what we mean by the term equality in general and equal protection under the law in particular. The equal protection clause has been interpreted to mean that where individuals have defined and/or recognized rights, no state can infringe them as this would constitute a violation of the equal protection clause. It also means that you cannot create intrusive classifications.
The concept of equality, at least from a procedural point of view, means that everyone has equal status before the law. No one has more rights than another and the vote of one individual does not count more than that of another. Equality, unless defined in terms of fairness, does not mean that we all have the same or that the results will be equal. Let’s say two people are graduating from the same class in college, and one is pursuing a career in finance and the other is in social work. We know the results will not be equal. Someone who has made a career in finance will end up being much richer than someone who has gone into social work.
Shall we then say that the results were unfair? Not if both were free to make the choices they did. But what if finance has more natural endowments than social work? Are the results still considered fair? If we were simply talking about the resources we had at the start, the remedy often mentioned is redistribution. Redistributing intelligence is not really a possibility.
Given this, are these two people who are supposed to stand on an equal footing before the law really equal? The rich and the poor are in theory equal before the law, but we know that in reality this is not true. The wealthiest people accused of crimes can hire the best lawyers and jury consultants when the poor are at the mercy of public defenders’ offices. The poor are more likely to enter into plea deals, even if they are innocent, simply to avoid a long sentence if found guilty at trial. It can be said that the prisoner’s dilemma discriminates against the poor more than the rich.
Since public servants are more likely to be sensitive to wealthier voters than to poorer voters, we know that not everyone has the same vote. Ironically, the Fourteenth Amendment was designed to correct this problem. Overthrowing Roe does not end legalized abortion; rather, it returns the matter to the States. This is where the fundamental problem lies.
On the one hand, the Fourteenth Amendment protects rights that are included 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 did not lose one’s privileges by going to another state. Therefore, this may be a reason why the Dobbs decision cannot be used as a precedent to annul same-sex marriage. But that does not mean that a person who enjoys the right to an abortion can now go to Alabama and demand one because that person’s right must be recognized. This is partly explained by the fact that whatever rights are protected, they 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 in which they live. We now face a situation in which women in states like New York, New Jersey, and California will inherently enjoy 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 states.
We’ve heard a lot that the Supreme Court shouldn’t be concerned with outcomes; single law. This assertion ignores more than two hundred years of American case law as the Supreme Court struggled to stay 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. In other words, it should rely on the goodwill of other branches to enforce its decisions.
The Fourteenth Amendment was one of three post-Civil War amendments and, according to conservative scholars, was intended only to protect the rights of newly freed slaves. In fact, Judge Robert Bork, during his confirmation hearing before the Court in the 1980s, made it clear that it was never intended for use, as it was in Brown v. Board of Education, to desegregate schools. On the contrary, it was only designed to protect newly freed slaves. One can only imagine that Judge Alito doesn’t completely disagree with Bork.
Let’s say for a moment that this is true. There is always an underlying assumption that goes to the heart of why it was adopted in the first place. In other words, states were untrustworthy guardians of people’s rights, and because of federalism, individuals could not be treated equally. We therefore return to our starting point. With this decision, we will be living in a country where individuals are not treated equally because some will inherently have more rights than others. So while the Dobbs decision does not violate the letter of the Fourteenth Amendment, it certainly violates its spirit.
But Judge Alito says there is no established right to abortion in the Constitution. At the same time, he should admit that there is also no right to life established in the Constitution. There are bases for deducing them. The Ninth Amendment clarifies that any rights that were not thought of when the First Ten Amendments were drafted are assumed to belong to the people.
A broader reading of the Fourteenth Amendment would have permitted such an inference. Another basis would be the First Amendment. Doesn’t allowing a state to pass the most draconian anti-abortion law based on a group’s religious beliefs violate the free exercise of religion? Is the effect of not imposing a religious position on others who do not share that position. A state that legislates solely on the basis of the Catholic Church, for example, cannot make an exception to protect the lives of mothers. But there are religions where the life of the mother comes first.
Judge Alito might respond that you cannot limit the rights of states to pass anti-abortion laws on the basis of rights that do not exist. The flip side, of course, is that you can’t deny people’s rights on the basis of protecting life when the Constitution says nothing about life. The implications, however, are broader than just the issue of abortion.
Judges like Alito would not hesitate to invalidate workers’ rights on the grounds that workers’ rights violate the property rights of owners. Remember that people with inherently more rights in one state than another may also be workers with more rights in one state than another. In the end, if equality does not mean the same thing across the country, talking about “our democracy” becomes nothing less than a joke because obviously some states will benefit and others will not.
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Mr. Levin-Waldman is the author of the following published books.
Restoring the middle class through wage policy: arguments for a middle class
Understanding public policy in the United States.
The minimum wage: a reference manual
Wage policy, income distribution and democratic theory
The case of the minimum wage: competing political models