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What Justice Kavanaugh Gets Wrong About "Neutrality" on Abortion

During oral arguments in Jackson Women’s Health Organization v. Dobbs, the potentially historic abortion rights case the Supreme Court is now considering, Justice Brett M. Kavanaugh took pains to assert that the court should not take sides. He touted this view as if it were a moderate middle ground, claiming that because the Constitution is “neither pro-choice nor pro-life” the court’s role is to “be scrupulously neutral on the question” and “leave it to the states.”

Yet Kavanaugh seemed not to recognize that this position — that the court should stay “neutral” on an issue of equality and liberty — has a long, sordid history. The court, in fact, has rejected this claim in some of its most celebrated rulings. Kavanaugh himself touted these very decisions during the same oral argument as examples of the Supreme Court correctly overruling faulty precedents. But he ignored that these landmark decisions were only possible because the court rejected Kavanaugh’s claim that denying constitutional rights amounts to neutrality. Rather, this faux “neutrality” argument, renounced repeatedly by the court, has long been associated with the likes of segregationists and gay rights deniers.

The text of the Fourteenth Amendment is not neutral about individual rights. Instead, it explicitly protects people’s liberty and protects it equally for all people, including women and people of color. The court has relied on these principles of equal liberty for decades to prevent states from, for example, restricting access to contraception and banning interracial marriage.

In fact, the argument that the Constitution is “neutral” on questions about individual liberty and equality and that these matters should be left to the states traces back to proslavery arguments during the Civil War. After the passage of the Thirteenth, Fourteenth and Fifteenth Amendments in the years following the Civil War, pro-segregation advocates and others looking to deny fundamental rights adopted this line of reasoning as a way around the Fourteenth Amendment’s promises.

In Plessy v. Ferguson, the infamous 1896 decision upholding “separate but equal” in public spaces, without using the word explicitly, the justices adopted this “neutrality” reasoning. Some states required segregation, other states didn’t practice it, while the court remained neutral on the issue.

Segregationists wanted the court to reaffirm this posture in the pioneering Brown v. Board of Education decision. At oral argument in 1952, John Davis, the lawyer for South Carolina, quoted to the justices from Judge John Parker’s opinion in the lower court, saying that “this is a matter for the legislatures and not the courts.” He further quoted Judge Parker, saying that because “the questions thus presented are not questions of constitutional right,” the members of the court have “no more right to read their ideas of sociology” and race relations into the Constitution than they do on any other topic.

Read entire article at Made By History at the Washington Post