Conservative caller thought she had a ‘gotcha’ question on abortion for Elie Mystal. She was wrong
Elie Mystal, justice correspondent at The Nation, was recently on C-SPAN with host Greta Brawner discussing the slew of new abortion laws, or more specifically the attack on women’s reproductive rights being waged by conservatives across the country. Laws like the one recently passed in Texas that makes abortion illegal after a woman has been pregnant for six weeks.
When host Brawner opened the phone lines up for questions, a 67-year-old conservative lady presented what she probably felt was a real legal ‘gotcha’ question to Mystal. Explaining that she had an abortion when she was in her 20s, which she says she has prayed about “every day [since] to the Lord to forgive me for what I have done,” she asked how it was even possibly constitutional that abortions are legal at all. It seemed very clear from her statement that she has been fed a lot of hooey from right-wing circles saying that the 1973 Roe v. Wade decision was “beat” and “stomped” and “crammed into the Constitution.” She wants to know: Where in the Constitution is abortion legal?
She tells Mystal that she will hang up and has a pencil and paper ready to write down his response. Hopefully she has a sharpener, because she’s got a bit of writing and researching to do.
Mystal begins by explaining how the Constitution and law work, in regard to American citizens. “We are talking about women having rights. Now the first place I would look for an abortion right is the Fourth Amendment, which says the government cannot illegally search and seizure your stuff.” One example of that? “I would say your womb is your stuff. The government shouldn’t be able to seize your womb to use it for their own benefit.”
But Mystal is not done, explaining that the caller can also check into the 14th Amendment, which guarantees all citizens of the United States equal rights under the Equal Protection Clause, and that also specifically includes people who can get pregnant having the exact same rights as people who cannot. “Now if they [men] have complete reproductive control over the system over the entire nine-month period, why can’t the woman?”
Mystal then begins to circle the 1973 Roe v. Wade decision, explaining that the right to privacy is an enormous one. While the Constitution doesn’t explicitly say the words “right to privacy,” the implication is there, as none of the other rights make much sense without that right. Mystal points out that the Ninth Amendment makes it clear that not all rights are written down, even though they are “retained by the people.”
Mystal goes on to say that if none of these work for the caller, there is always “the 13th Amendment, which says very clearly that involuntary labor cannot be forced by the government. If you want to tell me that a person who is pregnant can be forced, against her will, to do that labor for free, I’m going to tell you that is a point and click violation of the 13th amendment. So, Fourth, 14th, Ninth, and 13th.”
Finally, Brawner asked Mystal to explain what the Supreme Court originally said about a woman’s right in the landmark Roe v. Wade case.
The justices pointed to the right to privacy. They said the right to privacy, which is first articulated in the rights to birth control. Never forget the attack on abortion rights and attack on birth control rights are the same attack. They are coming after the same constitutional underpinning. The right to privacy was first articulated in Griswold v. Connecticut—that is the contraception case. They said that because of all these other rights, it wouldn’t make sense without a right to privacy, there must be a right to privacy in the Constitution. If there is a right to privacy in the Constitution, then—this is important—then the state still has a legitimate interest in the health and safety of the fetus, but that legitimate interest cannot attach until the fetus is viable. Until we hit 24 weeks. People say “abortion on demand.” There is no “abortion on demand.” That is not the legal landscape we all deal with. What we have is before viability, we treat the woman as a full person.
You can watch more of Elie Mystal over at Daily Kos’ The Brief. Mystal came on the podcast to discuss the moves conservatives in Texas and at the top of our Supreme Court have been making in their crusade to take away the reproductive rights of people in the United States.
This is a Creative Commons article. The original version of this article appeared here.