The Supreme Court just erased the word "equal" from the Constitution

Samuel Alito, the Supreme Court justice who wrote the draft opinion  that was leaked to Politico yesterday, said that the decisions giving women a constitutional right to an abortion “must be overruled” because the Constitution makes “no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the due process clause of the Fourteenth Amendment.”

It's the penultimate paragraph in the decision:  his rationale for canceling the right to abortion is that the word isn’t found in the Constitution.  So how about the word “vote?”  Nowhere in the Constitution does it say that citizens or anyone else has a right to vote.  Or let’s look for the word “corporation.” That word isn’t in the Constitution either, and yet over the years the Supreme Court has granted “personhood” to corporations under the equal protection clause Fourteenth Amendment (in the 1886 case Santa Clara County v Southern Pacific Railroad Co.) and free speech rights under the First Amendment (in the 2010 case Citizens United v Federal Elections Commission).

Or how about this word: “adoption?”  That right isn’t found anywhere in the Constitution, and yet Amy Comey Barrett, herself an adoptive parent, used adoption as her rationale to overrule Roe and Case during the hearing on the Mississippi abortion case since, as she pointed out, a woman does not need to get an abortion because she has the right to give up her child anonymously at birth in a so-called adoption box found at many fire houses and churches.  Where is the right to adoption found in the Constitution?

We could go on.  And on and on and on.  But it is interesting, isn’t it, that the one word Alito and the other four Republican-appointed arch-conservative justices failed to find in the Constitution was abortion, a right only women could have. 

Even though Alito from the very first specifically shoots-down the right to privacy “found” in the Fourteenth Amendment’s clause granting of “equal protection under the laws” to “any person,” he goes to pains to assure everyone that the five Supreme Court justices who have apparently signed on to the decision are not seeking to cancel any of the other rights protected by that amendment.  Without naming them, he is referring, of course, to the right to contraception found in the Griswold v Connecticut decision in 1965; the right to marry someone of another race found in the Loving v Virginia decision in 1967; the right to practice sodomy, largely but not specifically relating to sexual relations between same sex couples, found in the Lawrence v Texas decision in 2003; and the right of same sex couples to marry found in Obergefell v Hodges decision in 2015.

Until they decide to overrule them, that is.  Alito allowed as much, taking pains in his draft decision to note that the Fourteenth Amendment “has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition” and ‘implicit in the concept of ordered liberty.’”

Yeah, Sam, all those rights so deeply rooted in history and tradition and ordered liberty like gay sex and gay marriage and condoms and especially interracial marriage which was banned in all the slave-owning states at the time of the signing of the Constitution.  In other words, Alito specifically wrote an escape hatch into his draft decision that he and the three Trump loons and Clarence Thomas can drop through any time the fancy strikes them to strike down yet another right protected by the apparently completely-full-of-holes Fourteenth Amendment’s promise of equal protection of the laws to any person. 

What Alito and the rest of them mean is equal protection of the laws to the following persons, as in equal protection for the fetus but not the mother, equal protection for the rapist but not the woman raped, equal protection for all those personhood corporations but not the voters.

This decision is yet another step down the ladder into the dark pit of authoritarianism in this country.  There was a lot of yapping by conservative commentators all over the airwaves today about how Brown v Board of Ed. overruled Plessy v Ferguson, the execrable Supreme Court decision of 1896 finding a right of states or people to establish racial segregation for their schools, public accommodations, and businesses, as if this decision will be the Brown of its time, overruling a decision, Roe, that was similarly egregiously wrong from the start.

Bunkum.  Brown v Board of Ed., while an about-face from previous decisions of the court, was decided unanimously, 9-0.  This decision, if Politico’s reporting turns out to be accurate, will be yet another narrow 5-4 decision, lacking even the support of Chief Justice John Roberts, a Republican appointee and arch-conservative who has either had a case of conscience-itis or is making a last stand attempting to protect the credibility of the court that will go down in history with his name attached to it, like “Warren court” became known as the Supreme Court attached to the Brown decision.

Typically, draft decisions are submitted to the other justices for their comments, and in the case of those voting the other way, their dissents.  The author of the decision, in this case Alito, is then allowed the opportunity to fine-tune his decision based on helpful suggestions from friendly justices or biting criticisms by dissenters before the decision is published, which is expected sometime in June.

Until then, women have the right, if extremely limited in some red states, to an abortion in this country.  Then they will be condemned by five members of the Supreme Court to be second-class citizens who do not enjoy the protections of either the Fourteenth Amendment or the Tenth Amendment to the Constitution.  A nation founded on the three fifths clause of the Constitution denying Black slaves full citizenship, an egregious wrong that took a Civil War to correct, will now enter a phase wherein fully one half of its citizens will be subject to what we might as well call the one half clause.  Half of the population will be half-citizens.  Let’s hope it doesn’t take another Civil War to right the balance undone by this corrupt decision from a corruptly appointed and corruptly confirmed court.