I grew up in a violent home. You name it, it happened, usually more than once. I was also raised Catholic, complete with Catholic schools, where I learned first-hand how religion could be 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 my early years. Instead, I leaned on my Constitutional law pedigree, a diversion I hoped would highlight my competence and hide my origins. But the truth is, I turned to law because I needed something believe in.
I found my faith when I read the Federalist papers. In the mid 18th century, when people were still governed by brute force, our founders conceived of a brilliant concept: that all men should be equal before the law. Jefferson, Washington et al. had the singular insight to understand that governance by the rule of law would check the capricious whims of an indulged king.
I was smitten. For twenty years, I clung to Constitutional law like it was a life raft. As a federal trial lawyer, I drank and passed the koolaid with conviction.
I believed… until Dobbs
All of that changed in 2022 with Dobbs, when the Supreme Court threw outRoe v. Wade, not because science or facts had changed, but because six religious zealots finally had enough votes to do it. I understood from Dobbs that Constitutional law is mutable and politics-contingent, that what it says depends on who’s talking.
I have written enough about the legal infirmity of Dobbs, and how Alito, a lifelong misogynist, essentially spit at Equal Protection for women. But, with half the country supporting Trump, many Americans don’t fully grasp why “letting states decide” is so flawed.
Why “letting states decide” offends the 14th Amendment
Last week Trump appeared on Fox News and demonstrated his complete ignorance of American history and the Civil War. His comments illustrated 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 comments he previously made about the Civil War, saying, “Lincoln was probably a great president, although I’ve always said, why wasn’t that settled, y’know? it doesn’t make sense, we had a Civil War.”
Trump would have "settled" the civil war the same way the rightwing hacks on SCOTUS “settled” abortion: by letting states decide.
What the 14 Amendment requires
On June 8, 1866, the 14th Amendment was passed by the Senate; it was ratified two years later, granting citizenship to all persons including formerly enslaved people. Crucially, it also guaranteed that all citizens would have equal protection under the law.
The language explicitly extended protections under the Bill of Rights to the states: if the federal government had to respect the freedom in question, state governments had to respect and protect it as well. This meant states no longer had the right to “vote” to keep slavery. Black men were entitled to the same legal protections under the law as white men, regardless of how the majority voted.
The whole point of the 14th Amendment, adopted after the Civil War, was to remove fundamental freedoms from the whims of public opinion, because public opinion is easily manipulated.
The 14th Amendment prohibits all states from making or enforcing any law that denies the equal protection of the laws to all citizens, or that deprives any person of liberty without due process of law; it does not subject these rights to periodic revision as popular opinion fluctuates.
Applying the same Equal Protection analysis to women, states don't get to force women to give birth by voting on it any more than they get to put people in chains by voting on it.
The court in Roe v. Wade 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. When overturning Roe, Justice Alito wrote disingenuously that the 14th Amendment’s Equal Protection Clause did not protect women’s medical privacy 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,” prioritizing the Court’s “classification precedent” over 50 years of substantive due process.
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 can’t vary by state.
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Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. She writes the Substack, The Haake Take.