WASHINGTON, DC – MARCH 17: House Majority Whip James Clyburn (R-SC) participates in a bill enrollment ceremony for the Postal Service Reform Act, H.R. 3076, at the U.S. Capitol on March 17, 2022 in Washington, DC. The bill provides major financial relief to modernize the agency and restructure employee benefits to save money. (Photo by Kevin Dietsch/Getty Images)
By The Honorable James E. Clyburn (D-SC), House Majority Whip
The statement of purpose in the preamble to the U.S. Constitution says, “in order to create a more perfect Union.” While I often focus on the words “more perfect,” equally important is the word “Union.” I fear that the Supreme Court’s recent opinion overturning Roe v. Wade is a step back from that pursuit and significantly weakens our Union.
Ill-advised Supreme Court decisions have torn our Union asunder in the past. And anything that has happened before can happen again. The Supreme Court’s decisions in Citizens United and Shelby County started the most recent erosion of our constitutional rights and democratic values, and its decision in the Dobbs case strips away another long-held right. The Court is reverting to a dark chapter in its history and risks thrusting our Union down another dark path.
During the Reconstruction era immediately after the Civil War, our Union made significant progress toward greater perfection through the 13th, 14th, and 15th Amendments, and congressional action to enforce their protections. These efforts granted more Americans a greater ability, as the Supreme Court observed with respect to abortion rights more than a century later in Planned Parenthood v. Casey, “to participate equally in the economic and social life of the Nation.”
Yet the Supreme Court of that time issued decisions that contributed to halting this progress in its tracks, and which aided and abetted the return to power of Confederates and their white supremacist governing ideology—and the ultimate rise of the Jim Crow era. In the Slaughterhouse Cases and Bradwell v. Illinois in 1873, the Court severely limited the privileges and immunities clause of the 14th Amendment, stripping this constitutional source of rights from those Americans whose privileges and immunities were under threat. In United States v. Cruikshank in 1876, the Court exonerated members of a white supremacist mob that had perpetrated a local insurrection, holding that Congress could not protect Americans against violations of their constitutional rights by non-government actors, no matter how organized or how violent.
The Court’s endorsement of white supremacy was sealed with Plessy v. Ferguson in 1896, upholding the establishment of second-class citizenship with its “separate but equal” holding. The Court followed with Giles v. Harris in 1903, upholding Jim Crow voter suppression schemes that were disenfranchising African American voters throughout the South, rendering the 15th Amendment a dead letter for more than 60 years.
The effects of these decisions were that the rights of African Americans—the right to vote, the right to equal education, the right to be protected by law from deadly violence, the rights to “life, liberty, and the pursuit of happiness”—were dependent upon the states in which they lived. This states’ rights approach was highly detrimental to our Union and lethal to thousands of Blacks and other minorities.
Under this oppressive reality, the Great Migration ensued, where millions of African Americans moved north searching for dignity and greater opportunity. For them, a country in which they had to migrate from one part to another for basic rights—though circumstances at their destinations were far from perfect—was no union at all.
This type of disunion is beginning to repeat itself. Already, the Supreme Court’s decisions over the past decade in Shelby County (which resulted in states and localities no longer needing to have voting law changes “precleared” by the Justice Department), Rucho (which gave a green light to partisan gerrymandering), and Brnovich (which increased the difficulty of protecting the right to vote under Section 2 of the Voting Rights Act) are enabling stark divergences in democratic procedures from state to state, with some states enacting significant barriers to electoral participation and accountability.
This creeping disunion is being exacerbated with the overturing of abortion rights in many states. As a result of the Supreme Court’s green lighting of voter suppression and partisan gerrymandering, this backsliding may not be limited to states where a majority of voters support candidates who favor abortion bans. When this happens, women in many states—disproportionately Southern states—will be forced to travel elsewhere for abortion care. That will be a grave imperfection in our Union. And this option may not even be feasible for many low-income women, and they will find themselves in wrenching situations with no good options.
Those seeking to deny basic rights rarely stop halfway. States are already proposing to legally sanction trips to other states for abortions. The enactment of these laws—which I believe to be blatantly unconstitutional, but do not trust the current Supreme Court to agree—would force women to choose between living in certain states and access to legal abortion anywhere. Given that nearly one in four American women have an abortion in their lifetimes, I fear deaths and horrific outcomes to many pregnancies and maybe another Great Migration.
There is no reason to believe the anti-choice zealots would stop there. Members of Congress are already discussing a national ban on abortion. The most extreme seek a constitutional ban. Some may say they don’t foresee these bans happening, and they may be right. But I don’t trust the right-wing, anti-abortion extremists to stop until the right to legal abortion has been eliminated.
And as Justice Thomas’s concurring opinion warned, those seeking to outlaw abortion won’t stop there. The Republican platform calls for overturning Obergefell, which guarantees the right of same-sex couples to marry. Other rights like contraception, intimate activity between consenting adults, and even interracial marriage could also be at risk. If this Republican Party is given the power to pass laws and appoint judges, rights that many thought were safe will be in jeopardy.
Forming a more perfect Union in a diverse society like ours cannot be achieved through mandated conformity—that is a recipe for rupture, not cohesion. I have often observed that none of us is any more or any less than our experiences allow us to be. Some Americans’ experiences have led them to the conclusion that abortion is morally acceptable, while the experiences of others have led them to the opposite conclusion.
The best way to form a more perfect Union is to leave decisions regarding abortions to those who are by far the best suited to make them: pregnant women. The Court’s decision in Dobbs will go down in history with the Slaughterhouse Cases, Bradwell, Cruikshank, Plessy, and Giles as grave errors that took us further away from a more perfect Union. I urge my congressional colleagues and state legislators to learn from our history and change course before our nation is torn apart once again.
The Honorable James E. Clyburn (D-SC), House Majority Whip.
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