You know when a blog post starts like that I'm about to share opinions, so let's start out with a giant disclosure.
John Stephens is not a lawyer. He is also not a Constitutional Scholar, and he did not study the law or the United States Constitution. Unlike most members of Congress though, he has at least read the Constitution. He suffers a strange mental illness where he also derives joy from reading SCOTUS (Supreme Court of the United States) opinions, and having read literally hundreds of them he is sharing his opinions today. These are opinions, not legal advice. Do not retain Mr. Stephens for legal advice. If you want to employ Mr. Stephens, he sells board games, and teaches other people how to sell board games. On with the blog! (DISCLOSURE TWO - If you're a reader who comes here for gaming content, that's not happening today, sorry. Return next week when we finish our series on hiring new employees.) At some point yesterday a draft of an upcoming majority opinion from SCOTUS was leaked to the press. You can read it pretty much anywhere you go on the internet, so I'm not going to post it here. Chances are good you've already read it, or at least heard about it. This draft opinion would overturn Roe v Wade (410 US 113 (1973)), a court precedent that guaranteed women access to reproductive health care. This is a pretty simplistic view of what Roe v Wade actually accomplished, and we need to unpack the big important thing to understand why this ruling is so dastardly and tragic. All laws emanate from the US Constitution, and in the case of Roe, the ruling emanates from the 14th Amendment, particularly the Due Process Clause, which it was ruled during Roe, protects a woman's right to privacy during healthcare decisions, and allows a woman the right to choose an abortion because of that right to privacy. The right to healthcare is certainly at stake here, and a woman's right to make her own healthcare decisions is vitally important, but in my mind this is but the beginning of a slippery slope. Does this ruling mean that this SCOTUS doesn't recognize the right to privacy? Fellow Constitution readers, a question? Where does the word 'privacy' appear in the Constitution, and how many times does the word appear? Nowhere? Never? Zero? What?!? Then how can we have a right to privacy? We now return to something I said earlier; all laws emanate from the Constitution. This does not mean all laws are written in the Constitution, because that would have required a level of prescience that is unheard of outside of some random cults. The men who wrote the Constitution were not psychics, and despite the way we deify many of them today these are the same people who wrote the Three-Fifths Compromise, and of the fifty-five men who served at the Constitutional Convention, about twenty-five them of them were slaveholders. These men do not deserve status as deities, and their work has been nowhere near as perfect as some people like to pretend it is. But we were talking about reproductive rights here, not the terrible evils of slavery perpetuated by the Constitution, right? Oh yes, the right to privacy. In Roe v Wade it was enshrined in the Due Process Clause of the 14th, and this was again mentioned during Planned Parenthood v Casey (505 US 833 (1992)):
"Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U. S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them."
This right to privacy is not enshrined in the Constitution, but emanates from it, and not just in Roe, but also in numerous other cases where Due Process meant "stay out of my damn bedroom." If the 14th doesn't protect Roe v Wade, then we have to ask if it protects Lawrence v Texas (539 US 558 (2003))? What about Griswold v Connecticut (381 US 479 (1965))? Loving v Virginia (388 US 1 (1967))? Could I not, using this rollback of our understanding of the 14th Amendment, then say that the 4th doesn't really apply all the time? I mean, do you need to have a freedom from unreasonable searches if you have no right to privacy? If we want to intersect our 1st Amendment with that 14th Amendment, should we pause for a moment to discuss Stanley v Georgia (394 US 557 (1969))? This paragraph was written by Justice Marshall in that case: "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." So, not everyone may be familiar with the cases I've mentioned beforehand, but if you just copy and paste into Google you'll find stuff, it's why I use the entire notation (docket and year) the first time I mention a case, so you too can enjoy reading SCOTUS decisions for fun. This overreach into the offices of our medical providers is but step one, as they reach into our bedrooms and livings rooms, telling us what to think, what we can and cannot do without bodies, and who we can and cannot marry. After Roe is overturned. Obergfell will be overturned. Griswold will be overturned. Stanley could be overturned. Loving could be overturned. (I just realized this is the first time I've mentioned Obergfell, the most recent of these case; Obergfell v Hodges (576 US 644 (2015)) is the full notation so that folks who are unfamiliar with this can find it.) This is the nation we live in. I hope that we can change this nation with our votes, especially as primary season kicks off, but the truth is that we've allowed our politicians to pick their voters for decades, and we've allowed wealthy corporations to own politicians. We've also allowed religion to rule a country where that was never supposed to happen, and what we are seeing is overreaching Christianity literally bringing us the Sharia Law they claimed to be so afraid of. The freedom of religion more and more means 'freedom to be Christian, and to force that faith upon all'. America is being targeted by a Crusade, a holy war to remake this country into the image of the straight white dude who gets to do whatever they want and call it "God's will". We reap what we have sown, and to reap a new crop, we must sow new crops. I have an idea to fertilize those new crops.