I had an unusually traumatic childhood. You name it, it happened, usually more than once. I was also raised Catholic, complete with Catholic schools, where I saw religion too often 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.
When I ran for Congress, imposter syndrome kicked in and I didn’t talk about these truths. Instead, I hyped my Constitutional law pedigree, hoping to highlight my competence and hide my origins. But the truth is, I turned to law because I needed something to believe in.
I found my faith at 23 when I read the Federalist papers. In the mid 18th century, when people were governed by brute force and 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 singular insight 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 was smitten. I got religion. For nearly thirty years, I clung to Constitutional law like the life raft it was, at least for me. As a successful federal trial lawyer, I 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 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 vote on women’s lives is wrong because it relitigates the outcome of the Civil War.
“Letting states decide” is a been there, done that proposition
On Fox News, Trump recently reiterated his complete ignorance of American history and the Civil War. His comments helped illustrate 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 comments about the Civil War. A Monday morning quarterback 160 years later, Trump doesn’t think Americans should have gone to war over slavery or states’ rights. He brayed to half of the country hooked on Fox propaganda 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 would have "settled" the civil war the same way he and the rightwing hacks on SCOTUS think they have “settled” abortion: by letting states decide.
What the 14 Amendment requires
On June 8, 1866, after the south lost the Civil War, the 14th A was passed by the Senate, granting citizenship to all persons including formerly enslaved people. It also granted all citizens equal protection under the law, the key phrase being that 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 protection of the laws.”
The language 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 no longer “vote” to keep slavery. Under the 14th A, black people were entitled to the same legal 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 painlikened 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 women bleeding out in ER parking lots, or Republicans’ shiny new toys: interstate travel surveillance and state menstruation registries.)
When overturning Roe, Justice Alito dismissed 14th 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.
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 moronic claim 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 basic liberties cannot vary by state.
Meanwhile, in the run up to November 5, another woman has died from Trump’s “everyone wants the states to decide” abortion ban.
Studiously avoiding the polls, my bruised faith in the Constitution is starting to heal, quietly and cautiously. I remain sincerely in awe of the genius of our founding documents, and I still think Jefferson and Washington, flawed though they were, hailed from thousands of years in the future.
I believe America, ultimately, will survive the malignancy that has spread among us since 2015, and that we will emerge healthier and better equipped to stop the Jefferson Davises of tomorrow in their tracks.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. She writes the Substack, The Haake Take.