Is Overturning Roe Just the Beginning?

Think back to your high school civic engagement class, you probably recall learning about the Bill of Rights and all of the amendments that it encompassed. One of the hallmark amendments in this document is the Fourteenth Amendment. Two clauses within the Fourteenth Amendment that have quite literally shaped the world we live in today include:

The former guaranteed rights that were not enumerated elsewhere in the Constitution, and were monumental in securing the rights that cases like Roe v. Wade and Loving v. Virginia protected.

📸 Photo by Emma Guliani

The Equal Protection Clause is closely related to many cases that the Due Process Clause is argued under, and guarantees that states must govern impartially and is crucial in defending civil rights in America.

How did the Fourteenth Amendment change the culture and direction of America?

The Fourteenth Amendment first gained its precedent in the Dred Scott Supreme Court case. Dred Scott was enslaved in a free territory in 1846 and sued on behalf of himself and his wife that this enslavement was void due to their location in a free territory, Wisconsin. The Court, at the time, sided with Scott’s opposition citing racist ideology that enslaved Black people were not considered American citizens. During the Reconstruction period after the Civil War, the decision was overturned and precedent was set — formerly enslaved Black folks are citizens, and therefore entitled to equal protection under the law.

Jumping forward in history, cases such as Meyer v. Nebraska, Loving v. Virginia, Eisenstadt v. Baird, Obergefell v. Hodges, and Roe v. Wade broadened the scope of the Fourteenth Amendment. More importantly than broadening the scope of written law, cases built upon the Fourteenth Amendment pushed the direction of American culture forward and helped to decide what kind of country America is.

What is happening now, and how?

The Fourteenth Amendment, and the clauses it encompassed, were fundamental to the change of cultural direction and beginning to secure individual civil rights in America. The Fourteenth Amendment voided the power of state governments to practice discriminatory measures, like denying marriage equality, and effectively set into motion the ability of the federal government to prioritize individual rights and liberties over that of the states’ rights. Because this amendment has long pushed progress in America, it is evident to opponents of civil rights that the Fourteenth Amendment should be the first to be broken down in the hopes to revert America’s culture back to a dominionist, conservative culture.

Is there hope?

What does all of this mean for sexual and reproductive rights? The assault on the Fourteenth Amendment, and those in landmark cases that it secures rights for, is indicative of the direction that some want America to revert to. However, there is hope for all of us. One signal towards hope is the Supreme Court’s dissenting opinion in Dobbs v. Jackson, the case that overturned Roe.

Martin Kelly describes wonderfully how and why a dissent can give us hope. In 1936, Chief Justice Charles Hughes noted that, “a dissent in a Court of last resort is an appeal…to the intelligence of a future day.” This means that a justice knows the majority opinion goes against the rule of law, and hopes that decisions later on will be based upon arguments made in their dissenting opinion.

In other words, the justice is using their dissent as a road map of sorts to help future justices and attorneys create more sound law. Ruth Bader Ginsburg also noted that a dissenting opinion can serve as a call to action towards Congress in regards to issues in the law that the justice feels may need to be changed in the way or scope they are written. Broadly, dissenting opinions can inspire a glimpse into the future of what the direction of the culture America is headed in. 

FUNKY BROWN CHICK is a firm that is dedicated to achieving civil and human rights, for all. We work with clients and partners that are doing the work every day to construct a world that secures rights for and protects all who live in it. Work with us.