With the U.S. Supreme Court poised to hear oral arguments over a groundbreaking Mississippi law that could overturn Roe v. Wade, CNN’s legal expert attempted to link the “right” to abortion to the nation’s arduous battle to abolish slavery.
Kim Wehle began by falsely asserting that Texas “literally” has “no abortion rights,” thanks to the Texas Heartbeat Law, which protects unborn children from being aborted if a medical professional can detect a fetal heartbeat. The law does not affect abortion before that time.
“Roe was kind of de facto overruled in Texas,” said Wehle, who is a CNN legal contributor, a university law professor, and a frequent author at The Bulwark. “That’s what makes” Wednesday’s arguments over Dobbs v. Jackson Women’s Health Organization “so dangerous. There are approximately 26 states that are poised to ban abortion if Roe gets overturned.”
Wehle then turned to the legal basis on which the Supreme Court created the “right” to abortion in the 1973 landmark case, telling CNN host Don Lemon that it came “from the Fourteenth Amendment [of] the United States Constitution. That’s a post-Civil War, anti-slavery amendment. It’s about obliterating the brutalities of enslaving people, where half of enslaved people that moved through interstate were separated from spouses, were separated from parents. Of course, they were brutalized physically.”
The link between the right to abort a child and slavery, which treated human beings as objects who could be killed at their owner’s convenience, is not readily apparent.
The authors of the Fourteenth Amendment, which was written in 1866 and adopted in 1868, gave no indication that they intended their amendment to confer an unalienable right to abortion. The Thirteenth, Fourteenth, and Fifteenth Amendments — known as the Reconstruction Amendments — aimed to free American slaves, abolish the institution of slavery, and grant formerly enslaved people full U.S. citizenship.
Abortion was illegal in much of the United States in the nineteenth century and remained so after the adoption of the Fourteenth Amendment.
Pro-life advocates have long said that the Fourteenth Amendment legally forbids the taking of human life in the womb. The amendment does not allow “any State [to] 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.”
The Roe v. Wade ruling agreed with this legal reasoning, noting that abortion cannot be considered constitutional if someone confers the status of “personhood” on the unborn. “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment,” Supreme Court Justice Harry Blackmun wrote in the decision.
Instead, Blackmun and his fellow justices built on the 1965 Griswold v. Connecticut ruling, which asserted that the Constitution had a multitude of unwritten “rights” waiting to be discovered. “The Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” the case held. For the first time in Supreme Court history, the 1973 Roe v. Wade ruling claimed that the ability to procure an abortion fell under the newly discovered “right” to “sexual privacy,” which is “said to be protected by the Bill of Rights or its penumbra.”
The idea that the Supreme Court should restrict its jurisprudence to “enumerated things in the Constitution,” such as the document’s actual text, is “really scary,” Wehle told Don Lemon.
But many jurists say the court has politicized itself by artificing dubious legal rulings to affect policy on contentious social issues. “The major problem with Roe from a constitutional perspective is that the court took something that appears nowhere in that document – and which therefore is left to the states – and promoted it to a fundamental right. Nothing in the Constitution’s text, structure, history or tradition supports this innovation. The court’s exercise of raw judicial power thus usurped Americans’ ability to determine whether and how to regulate abortion,” wrote Carrie Severino, president of the Judicial Crisis Network, in a statement. “When the court exercises that sort of judicial supremacy, the justices transform themselves into political figures – the most important and dangerous political figures in the nation.”
Others note that the Democratic Party, whose 2020 platform calls for taxpayer-funded abortion through all nine months of pregnancy, ardently supported slavery and segregation in the 1860s. “Today’s party of unlimited abortion was also the party of slavery, the KKK, Jim Crow, and voter suppression,” The Radiance Foundation’s chief creative officer, Ryan Bomberger, told me earlier this year. “Sadly, the Democratic Party still doesn’t see us as being created equal and continues to divide us by the color of our skin.”
Bona fide white nationalists endorse abortion-on-demand, which disproportionately reduces the birthrate of minorities. A total of 117,626 black babies were aborted in 2018, according to the CDC’s most recent abortion surveillance.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.