Whoopi Goldberg vs the 14th Amendment

Recently the ladies of The View took up the discussion of Anthony Kennedy’s retirement. They front loaded it with some classic demagoguery from President Donald Trump:

“Democrats want judges who will rewrite the constitution anyway they want to do it and take away your second amendment, erase your borders, throw open the jailhouse doors, and destroy your freedoms. We must elect more republicans.”

Then Whoopi Goldberg, who was clearly disturbed (along with a large part of America) by the news of Kennedy’s retirement, shot back with some demagoguery of her own:

“I don’t like hearing again that I’m trying to take your rights away. Because, as a woman, I think you’re trying to take my rights away; as a person who believes in the Constitution, which tells me I have the right to be myself and do the things I want to do and I don’t have to listen to what your religion is and I don’t have to listen to what you want it to be. I don’t like this line that I, as a Democrat or Independent or whatever, am trying to take away anything from you. I’m trying to hold onto my personal rights. If you take mine, I feel like you’re the one with the problem. You don’t want people to take your guns? Get out of my behind, get out of my vagina, get out!”

Later on she stood a little “taller” on her soapbox and essentially prevented Meghan McCain from expressing her opinion on the nature of abortion:

“I’m not okay when people say I want my stuff but you can’t have yours. The government has said I have the right if I need an abortion I can have one and I feel that you have every right to have the guns you want there are some guns I think shouldn’t be out there but I don’t say you can’t have your damn guns I don’t want anybody saying to me I’m going to make this decision for you I know how your life is and I know how you feel…” and what started as woke raving turned into incomprehensible word salad.

The Tragic Irony

The painful irony here is that the very same amendment that recognizes the natural rights of women and black Americans bringing US federal law into alignment with the vision of equality held by the founding Fathers denies her conclusion that she has a right to an abortion under the understanding put fourth in Roe v Wade. AKA there is a virtually iron clad case to be made that the 14th amendment protects the unborn.

Largely forgotten today this was probably the largest legal hurdle to expanding abortion rights beyond the special case of danger to the mother’s life in 1972. The Supreme Court majority maneuvered its way around the 14th amendment by arguing:

In summation the majority argued the laws that were written during the 19th century to regulate abortion were predicated on the danger of the procedure. Medical science having considerably advanced in the 100 years following these laws made that legal reasoning obsolete according to the majority.

There’s only one problem with this argument. It is false. Not medically but legally.

Conclusions based on Lies

The majority was reliant essentially on two articles by Professor Cyril Means who was an advocate for the repeal of abortion laws. And unfortunately for him (and Roe v Wade) his work in this area has been severely discredited and no longer seen as a reputable resource for understanding Abortion Law.

Since Roe v Wade there has been a near universal consensus over the meaning of the abortion laws surrounding the 14th amendment. James Witherspoon clarified the new historical understanding:

There are 12 distinct lines of evidence showing that Roe V Wade was incompatible with the 14th amendment. And perhaps most disturbing about our own cultural moment is that the prevalence of ultra sound seems to be one of the primary drivers for the consistent (though slow) turning of the public opinion tide against current US abortion law.

Ancient Embryology

This has been heralded as a breakthrough. A writer in the fantastic online magazine that I regularly contribute to suggested last year that:

The sad truth is that statements like these only highlight the embarrassing regression of ignorance caused by SCOTUS in Roe V Wade (something that the writer actually affirms tangentially). Because the abortion laws that inform our understanding of the 14th amendment were put in place as a consequence of the major advancements in embryology that occurred nearly two centuries ago.

In other words Trump’s so called fear mongering about the Democrats wanting to place judges on the court that will rewrite the constitution in any way they want isn’t really fear mongering (at least in this instance). Planned Parenthood V Casey admitted that Roe V Wade’s reasoning was flawed yet upheld the ruling anyway. Roe V Wade is itself a cavalier revision and any judge seeking to uphold it is participating in the rewriting of one of our most fundamental and cherished laws directly forged out of crucible of the Civil War.

This is highly ironic because the very legal reasoning Goldberg is defending is the kind of reasoning that could remove US legal protections of her natural rights if an actual Nazish regime ever inexplicably came to power in the US. This debate is fraught with practical complications due to the toxicity of our current political climate but the way forward is not meeting one kind of demagoguery with another even more ignorant sort, but by delving deep into our grand tradition together and finding the truth.

Educator, podcaster, & writer

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