The Supreme Court: not the most important protector of civil rights, including reproductive rights

The U.S. Supreme Court has a checkered history when it comes to safeguarding civil rights. The strongest protections for rights of African-Americans, for example, do not owe to Supreme Court decisions but to federal legislation. Many people know about the Voting Rights Acts of 1965 to the present. Fewer know about a much older piece of legislation, enacted to implement the 13th, 14th, and 15th Amendments to the U.S. Constitution. This legislation is now codified as section 1983 of Title 42 of the U.S. Code (the corpus of federal legislation in effect today). Section 1983's subtitle is "Civil action for deprivation of rights". But this rather mundane subtitle obscures section 1983's historical significance. Section 1983 dates back to to 1871 and a piece of post Civil War legislation called The Ku Klux Klan Act of 1871. That act, like the contemporary section 1983, gives individual African-Americans the right to recover damages against individuals who, acting under state or local legal authority, violate federally guaranteed civil rights - and in its current version Section 1983 notes that such guarantees may be rooted in either the Constitution itself or in federal statutory law.  It is true that for almost 100 years, the Supreme Court's narrow interpretation of section 1983 and its predecessor, The Ku Klux Klan Act of 1871 made it almost impossible de facto for African Americans to use it effectively. And it is also true that in the case of section 1983, it was the Supreme Court that eventually reinterpreted the statute to make it an important tool in the fight for African American Civil Rights. (For a decent layperson's version of the full history of section 1983, go here.)

But if any Congress had had the will and the leadership to override the original Supreme Court rulings that for so long gutted the original Ku Klux Klan Act it certainly could have. Congress can always correct the Supreme Court's interpretation of its acts.

Now, let us turn to the issue of some civil rights key to women's liberty: reproductive rights, including the right to be free from state interference with access to birth control and abortion. Congress has the power to pass statutes along the lines of section 1983 to give much stronger protection to reproductive rights than current Supreme Court jurisprudence does. A Congress serious about individual liberty for both men and women (regardless of their color) would do just that. Meanwhile in the years since Roe v. Wade was decided, the Supreme Court has decided case after case cramping its scope and impact. (Two examples: the Supreme Court has upheld state created waiting period requirements and state laws requiring double parental notification).

Other things equal, I would prefer Roe v. Wade not be overturned. But the reality of abortion and access to birth control in this country is that in most places neither are readily available, particularly to young people. Of course, one may think this a good thing if one has views different than mine about the centrality of reproductive rights to human rights. But if you believe that control over one's procreational activities is about as fundamental a human right as there is, then you need to realize that to the extent the federal government can protect the individual it would be by enacting comprehensive legislation to do just that. Even more effective would be for each state to also enact its own legislation to do it.

At the level of Presidential politics Roe v. Wade has become something of a rhetorical football thrown back and forth a way of inciting passions among pro-choice and anti-abortion factions in the major political parties. But Roe v. Wade really does not have that much to do with making sure that this country treats women's rights as human rights and reproductive rights as human rights. For that dream to be fulfilled we need the federal legislature and state governments to act to secure these rights.

Here is a list of pro-choice women legislative candidates running for federal legislative office. (The list includes some candidates about whom I have sufficient knowledge to personally advocate, based on all of their positions, not just their stands on reproductive rights:  "Vic" Wulsin (OH), Kay Hagan (NC), and "Sam" Bennett (PA).)

If you want to see a truly empowered Senate that will work for reproductive rights, consider supporting Senator Hillary Rodham Clinton For Senate Majority Leader 09. Learn more.

Comments

[Cyn NY]

Excellent analysis, Heidi. I am so sick of being slapped down by Democratic friends on the Supreme Court and Roe v. Wade issues. This has clarified it nicely.

Cyn

[janicen]

Very interesting post, Heidi. Thank you.

[Pagan Power]

I've been arguing for months that the potential makeup of the Supreme Court itself is irrelevant. You have stated this perfectly. The legislative body has the power to make law. And they indeed have the right to overturn a Supreme Court decision by doing so.

It seems by all the horror stories coming from the far left, that there is an implicit admission that the Dems on Capital Hill don't have a backbone so they want to scare us with what will happen because of that fact.

Trying to get us coming and going.