Kayla Cotter | The only thing deeply rooted in this Nation’s history and tradition is inequality

Congratulations to Supreme Court Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett. You have undoubtedly protected the sanctity of the Constitution: a document that in its original form relegates anyone who isn’t a cisgender, heterosexual, white man to second-class citizenship. You have effectively heeded this nation’s misogynistic, homophobic, and racist history, enflamed debate, deepened division, and imposed a highly restrictive regime on this country’s entirety. The public outrage is well-deserved.

On Friday, Roe v. Wade was overturned in a 5-4 decision that eliminated the federal constitutional right to abortion that has existed since 1973. In the majority opinion, Justice Alito said that Roe v. Wade was “egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” Yet, the only exceptionally weak, egregiously wrong decision that I can see is its reversal. At the crux of their legal argument is that the Due Process Clause of the 14th Amendment does not implicitly protect abortion. Justices Alito, Thomas, Kavanaugh, Gorsuch, and Barrett find the procedure’s exclusion problematic; they must have forgotten that, 200 years ago, women were not part of the political process. They did not have the right to vote when the amendment was ratified in 1868 and would not for another 50 years. The first woman to serve in Congress did not do so until 1917. It shouldn’t be surprising that women’s reproductive rights are excluded from a document to which women did not contribute.  

This decision in which the court has decided to uphold the original intent of our leaders from the mid-19th century is an example of originalism. This is a method of constitutional interpretation that asserts that we must interpret the Constitution's provisions based on the framers' intentions. Importantly, this judicial philosophy didn’t gain traction until the 1970s and 1980s after Roe v. Wade was decided. 

Dobbs v. Jackson, the case which overturned Roe v. Wade, reflects what makes originalism an unreasonable legal theory, and one that lacks legitimacy in the first place. In it, the Justices who oppose Roe v. Wade, most self-declared originalists, consciously fail to honor the pillar that makes the Constitution worthy of our consideration: the protection of civil liberties. As they search the broad, ambiguous text of our Nation’s founding document for answers to questions the framers never asked and women’s rights that didn’t exist, they forget that the reason we have continued to look to the Constitution for over 200 years is not because it’s perfect, but because it perpetuated the broader ideals of democracy, equality, and justice. It was revolutionary at the time; today, it is miserably outdated.

Though originalism supposedly protects the Justices from imposing their own subjective and elitist values, the intentions of the United States’ Founding Fathers should not be held sacred. When Justice Alito writes that the Constitution “makes no reference to abortion,” he fails to recognize that its original form does not mention women, color, race, slavery, the LGBTQ community, mass shootings, or the internet. In fact, the 14th Amendment itself is a product of the long, drawn-out battle over whether or not slavery should continue. The Constitution's 4,500 words are remarkably silent on many of today’s glaring issues because it was written over 200 years ago. If we follow the Constitution as per the Founding Fathers’ intentions, neither Barrett nor Thomas would have any rights delegated by the Constitution at all, much less seats on the Supreme Court of the United States. We shouldn’t ignore the original text of the Constitution, but to make a decision without factoring in its modern consequences is harmful. This week, the Court has signed the death warrants of thousands of women merely because the United States has a history of disrespecting them; they have decided to perpetuate that legacy rather than improve it.

Roe v. Wade is not the only decision that sees the Constitution as a living document rather than static. Landmark cases such as Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, which deal with contraceptives, same-sex sexual relations, and same-sex marriage, respectively, rely on an interpretation of the Constitution that is in tune with modern values. As Justice Thomas made abundantly clear in his concurring opinion, the decision to overturn Roe v. Wade leaves these cases open for reevaluation. Though Thomas neglects to mention Brown v. Board of Education or Loving v. Virginia, which deal with racial segregation and interracial marriage respectively, these cases also rely on a non-originalist view of the Constitution—neither of their conclusions reflects what the framers intended, and that’s for the better. It’s important that we remember that nobody has ever made progress by sticking to tradition, including our Founding Fathers. 

The Constitution holds potential, but only if we allow it to evolve. We cannot rely on the intentions of slave owners and misogynists. To call the Constitution the ‘great charter of our liberties’ is asinine when you consider whose liberties it never intended to communicate. I don’t care about what James Madison, a wealthy white man who owned 36 taxable slaves at the time of his death in 1836, would have wanted when it comes to my reproductive health. These are not men whose intentions should decide the law today. They themselves knew that. Thomas Jefferson once said, “We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.” 

When reviewing our past, pragmatism is key. As a college-aged woman, I viewed Roe v. Wade as a safety net, not only for myself and others’ reproductive rights, but for landmark decisions such as Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, all of which rest on the same foundation. The court, as it stands, is intent on moving backward; we must be vigilant to ensure we don’t follow it: donate to abortion funds, spread the word about resources, and vote for representatives who will ensure these rights continue to stay afloat regardless of what five unelected senior citizens serving life-long appointments decide. 

KAYLA COTTER is a rising College sophomore studying history from Manalapan, NJ. Her email is kmcotter@sas.upenn.edu.