Local Voices: Abortion as a study of constitutional rights

Submitted by Bob Malkas

There was a time in bygone days the State of Illinois required all graduating high school seniors to pass a U.S. and Illinois State constitution test. I know because I administered them. It was not a difficult test. It just prepared future generations to understand the basic rights granted by the state and national governments to its people.

I do not know when that graduation requirement was dropped, but I do know when critical theory began to be used, and I lament each day what our country would be today if we applied the choice offered in Robert Frost’s poem The Road Not Taken. What would it have been if the other road was taken.

Let me give an example to illustrate how our educational system is failing America’s future generation. Those now antediluvian constitution tests defined the rights bestowed on all people by teaching the purpose of each of the three branches of government: executive, legislative, and judicial. The legislative makes the laws, the executive enforces them, and the judicial interprets them based on the evolution of case law.

A case in point would be using the history of the U.S. Supreme Court decision-making procedures. In 1892 an African-American train passenger, Homer Plessy, refused to sit in a train car that was reserved only for Black people. There were other cars on the train denied to him. He said his rights as an American citizen were violated. The case ultimately made its way to the United States Supreme Court, and there his arguments and those who supported him were rejected. The Court ruled his constitutional rights were not violated because each car was the same, Thus, the concept of separate, but equal was established and gave states the okay to continue separate but equal practices, only if they chose.

That then became an accepted practice for more than 50 years and would not be corrected until 1954 when the Brown v. The Board of Education of Topeka, Kansas, overturned it. We must know that our governmental system allows U.S Supreme Court findings to be interpreted differently as new justices and new case laws are established.

In 1951 Brown’s daughter was denied entrance to an all-white elementary school. In his lawsuit Brown claimed that schools for Black children were not equal to White schools, and that violated the equal protection clause of the 14th Amendment of the U.S. Constitution.

In 1954 that court unanimously struck down Plessy, and when that was ruled what some states thought was constitutional would no longer be accepted. A revised interpretation of constitutional rights was evolving and making America stronger as our founding fathers intended.

I want to take advantage of this American political science teaching moment and apply it to 2022-2023 and the way the 1954 Roe v. Wade Supreme Court decision evolved since then. I have no intention of discussing the merits or opposition to the abortion issue because it is irrelevant for this article: I am only interested in exploring the process in Dobbs and the changes it made. What was decided in Plessy can be compared to the decision rendered in that case. The Brown case was made by justices sitting on the bench at that time, and how they then read law and existing social and scientific conditions. Because the public in Dobbs lacked a knowledge of the workings of government, uninformed decisions were made with unfortunate results. Dobbs corrected the Roe v. Wade decision. What was once understood as a constitutional right 70+ years ago became irrelevant because science had advanced, and the decision made in 1954 would never have been rendered based on what is known today.

Political analysts agree that the right to have an abortion had a major effect in determining the results of the 2022 national election. Voters were led to understand Dobbs took away the right for women to have an abortion, and that was taking a constitutional right they had during Roe. That assumption was not correct. The Supreme Court did what it was intended to do.

The constitution of the United States does not address such a right. The 10th Amendment does specify that only states have that right. If it is not enumerated in the text of the Constitution, it reverts back to the states. That is all Dobbs did. Yet, it is still believed by the abortion supporters that Dobbs overturned Roe.

Bob Malkas