The history of the United States has been a history of the struggle to attain personal freedom. The earliest settlers came to escape different forms of oppression in Europe. The American Revolution was fought to obtain freedom from ruling Mother England. And throughout our history, groups have fought their own battles to be considered free under the United States Constitution. One of these battles is even being fought now.
When the Constitution was written, only white male land-owners were considered citizens, so they were the only ones that were protected by the Constitution to its fullest extent. The struggle for suffrage for Blacks and for women was a time of major social change in America, and the achievements of the two different groups are reflected in the thirteenth through fifteenth amendments for freed slaves, and the nineteenth amendment for women.
Now that the Constitution does apply to every person born in or naturalized to the United States, the struggle begins to apply those same rights to the unborn, so that their lives and rights will be protected. An unborn child is not considered a citizen, and therefore does not have the protection of the Constitution, especially the line “life, liberty, and property.” A struggle has ensued since Roe v. Wade, the watershed case that legalized abortion for the nation, to have the Constitution implicitly or explicitly guarantee fetal rights. The nature of this struggle parallels the struggles of Blacks and of women, while naturally deviating from them as well. It is these struggles that defines the term ‘American.’
Perhaps most notorious in the history of the American struggle for recognition and the equality promised in the Declaration of Independence is that of the slaves who first had to fight for their freedom from slavery, and even after that was obtained, had a long struggle of becoming citizens worthy of full protection and suffrage under the United States Constitution. Before the Civil War started or the Emancipation Proclamation was made, there was a Supreme Court case that concerned this issue that set the belief that Blacks were not and could not be citizens. That case, commonly known as the Dred Scott case, was decided in 1857, and concluded with the pronouncement made by Chief Justice Taney that “Negroes, even those who were free, were not and could not become citizens of the United States within the meaning of the Constitution” (Schwartz 115). The basis of this argument was that freed slaves were not recognized as citizens of their home states when the Constitution was written, and since only those “who were at the time of the adoption of the constitution recognized as citizens in the several States, became also citizens of [the federal system adopted by the Constitution]; but none other”, no Black could ever become a citizen of the federal United States. Taney went so far as to say that those imported as slaves and their descendants were neither “acknowledged as part of the people, nor intended to be included in the general words used in [the Declaration of Independence]” (Taney, as quoted in Schwartz 119). This meant over all that Dred Scott’s case was meaningless, because as a non-citizen, he did not have the right to sue in United States or state courts.
Fortunately, Congress recognized that certain rights belonging to the freed slaves had to be constitutionally protected after the Emancipation Proclamation (1863) and the Civil War (1861 to 1865). In 1865, the Thirteenth Amendment was ratified and added to the Constitution, saying that “Neither slavery or involuntary servitude…shall exist within the United States” (United States Constitution 82). This rather simple amendment was a huge step for those pushing for equality among the races, because it meant that Whites had no legal way to enslave Blacks, unless they were convicted for a crime they had committed. Three years later Congress followed that up with the more complicated Fourteenth Amendment. Section one of the newest Constitutional addition stated, “All persons born or naturalized in the United States…are citizens of the United States and of the State in which they reside.” This amendment also promised “due process of law” and “equal protection” for these citizens (United States Constitution 83). For the first time, this included the Black race. Then only two years later, Congress proved their intent of giving freed slaves full citizenship when the legislative body promised that suffrage, the right to vote, would not be denied to citizens on account of their race or skin color, or whether they were previously slaves.
However, even suffrage is not enough to bring equality to a nation that had previously been so divided. New laws arose in the South that not only permitted but also often required that the races be separated. This applied to education, transportation, and public accommodations such as bathrooms, restaurants and hotels. Fortunately, there was recourse then were there had not been in the time Dred Scott was decided. Blacks, as citizens, could sue in courts of law, and they did in Plessy v. Ferguson, arguing that having separate facilities is negating the idea of equality that they deserved. The Supreme Court did not agree. They concluded that the doctrine of “Separate but Equal” was constitutional, saying they “cannot say that a law which authorizes or even requires the separation of two races in public conveyances is unreasonable or…obnoxious to the Fourteenth Amendment” (As quoted by Chemerinsky 558). The Court was basically saying that Blacks could have citizenship, but not to the same level as Whites.
Change would still come. It was not until 1956 that the Court would turn around on the issue set in Plessy. Brown v. Board of Education of Topeka Kansas declared that separate is inherently unequal, finally agreeing with the eloquent dissent Justice Harlan wrote for Plessy, saying, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens” (Harlan, as quoted by Chemerinsky 558). Finally, Blacks obtained confirmation, from the Supreme Court of the United States, of something that they and many of their fellow countrymen already held to be true: that all citizens, Black or White, should be treated the same.
The plight of women in America took on a much different form, predominantly because of their status throughout American history. Women-specifically White women-have always been considered citizens to a degree, but at the same time were often considered to be property of their husbands or fathers in the eyes of the law. In the very early years of the nation, women did have the right to vote in certain states, usually only in certain types of elections; however, by 1807, each of these states had revoked that right. The question may be raised why the women did not challenge the revocations of their voting rights. One possibility for the answer goes back to Plessy v. Ferguson: that women as well as Blacks, not having full citizenship, simply were not allowed to sue in United States courts.
By the mid-nineteenth century, women were using social means instead of political ones. These women, called Suffragettes, developed their own organizations, writing petitions and pamphlets, and spreading the word to women who did not recognize their own oppression. One of the most famous Suffragettes, Elizabeth Cady Stanton, authored “The Declaration of Sentiments” which reported in a literal way what was decided at the Women’s Rights Convention in Seneca Falls, NY, 1848. The form of Stanton’s declaration borrows directly from the American “Declaration of Independence”, adjusting phrases accepted by their own nation so that the words fit women into the scheme also. For instance, Stanton wrote, “We hold these truths to be self-evident: that all men and women are created equal” (Stanton). The document goes on to name each sin that the male-dominated government had committed against women ‘citizens.’
He has compelled her to submit to laws, in the formation of which she had no voice….
Having deprived her of this first right of a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides.
He has made her, if married, in the eyes of the law, civilly dead.
He has taken from her all right to property…..
….if single, and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it…
He has usurped the prerogative of Jehovah himself, claiming it was his right to assign for her a sphere of action, when that belongs to her conscience and to her God. (Stanton)
In 1867, Congress and the states ratified an amendment that would prove to change the way citizens were defined in the United States, and how the laws were applied to these citizens. Some Women’s Rights activists feel that the fourteenth amendment still literally defines citizen as male. While it actually says, “All persons born or naturalized in the United States…are citizens…”, section two does talk about representation based on male citizens over the age of twenty-one (United States Constitution 83). This does imply that only males over that age have full citizenship. Shortly after this gender-biased amendment was ratified, Congress prepared work to approve a fifteenth which would remove the race-bias from the elective franchise, as, even though the words of the fourteenth seem to allow it, blacks found that states and districts had developed ways to keep them from voting, such as taxes and grandfather clauses. Therefore, their suffrage had to be constitutionally guaranteed. The Suffragettes, many of whom also fought for racially-based rights, petitioned to be included in the fifteenth amendment. However, their petitions were ignored or overthrown, and they were excluded from being allowed voting rights.
1874 presented another major set-back in the struggle of the Suffragettes. The Supreme Court case of Myner v. Happersett said that citizenship did not guarantee suffrage. Women, though in name considered citizens, would not, according to this case, be able to vote unless the legislature decided they could. In 1878 Congress attempted to do so, but the measure was defeated in Senate. Twenty years after that decision, states began to grant suffrage to their female citizens, and President Wilson threw his support behind the work of the Suffragettes. In that same year a women’s suffrage amendment was again proposed but again defeated in the Senate, this time by only two votes. Finally, on June 4 of 1919, a women’s suffrage amendment passed through both houses of Congress, and was then ratified by the required number of states by the next year’s August. On August 26, 1920, the Susan B. Anthony Amendment, numbered amendment nineteen, became law.
Still there are many who say that women still have not gained equality with their male counterparts. There are still Women’s Rights groups who are petitioning for an Equal Rights amendment that will guarantee all citizens, male or female, Black or White or Asian or Hispanic, the same amount of protection under the laws.
There is still a battle being waged for the equal protection of another class of humankind in the United States. The most unfortunate fact in this third class of non-citizens is that they cannot fight for themselves as the freed slaves and their descendants did, or as generations of women did. The unborn, simply by biological truths, have no voice in their treatment, and so their struggle is maintained by those in the world who feel that even the unborn child should have some of the rights and protections as a citizen of the United States. This adds an extra difficulty to an issue that already seems determined. Roe v. Wade is a powerful precedent, and the Supreme Court relies heavily on the practice of Stare Decisis, meaning, “let the decision stand.” However, as with former slaves and their descendents and women, history has proved that sometimes only time is needed to bring forth total transformations in the policy set by the Supreme Court. There were probably many who felt that the precedent set by Plessy v. Ferguson would never be overturned, but it was, sixty years later. Perhaps this will prove true for the issue of abortion as well.
Roe v. Wade and its companion case Doe v. Bolton destroyed the laws banning abortions across the nation. It was the Roe majority opinion written by Justice Blackmun that delivered the biggest blow to those who argued against abortion, and those who continue to do so, under the name Pro-Life. Blackmun writes that “if we accept fetal life, there’s a strong argument that [the state can outlaw abortions]” (Blackmun, as quoted in Schwartz 341). This sounds like a positive to Pro-Lifers, but is followed up later by the statement “the word ‘person’ in the fourteenth amendment does not include a fetus” (Blackmun, as quoted by Schwartz 352). The Court does not accept that the unborn fetus represents a life and a person. Looking beyond moral and personal arguments on the debate over abortion, this simple fact is the legal basis that could overturn Roe. If a fetus was recognized as the first stage in the natural progression of a hman life, and had applied to it the name of citizen, it too could be protected through the equal protection clause of the fourteenth amendment.
Historically, the Court has sought to protect the Constitutional rights already granted to the mother; that is “life, liberty, and property” as well as the implicit right to privacy. US v. Vuitch, 1971, Planned Parenthood v. Casey, 1992, and Stenberg v. Carhart, 2000 are all cases brought forth along with Roe v. Wade that were decided against abortion, each claiming to be protecting the mother’s psychological and physical health. The Casey case even established the “undue burden test” in which state regulations cannot place a substantial obstacle in the way of women who want to have an abortion. The high Court decided that a woman has the right to not be punished in any way for her decision to have an abortion. This includes not having to notify the father of the child, or the woman’s parents if she is a minor. Basically, as far as abortion is concerned, all rights are given to the would-be mother.
The Supreme Court, in Roe, does admit that there is a point when abortions should not be legal; that is, the point of viability. Viability is when the fetus, if brought into the world, would be able to survive, outside the mother. This point of viability is arbitrarily decided though: some children born seven months premature were not able to survive, whereas some born at five and a half months were, and besides that, it cannot be determined for certain until after the baby is brought outside the mother, when the point is moot anyway. However, then in Doe, “life and health of the mother” is defined to broadly that an abortion can be performed up to the time the child should be born for largely whatever reason the mother decides, be it physical health, protection of life, or simply changing her mind for emotional reasons. In Stenberg v. Carhart, a Nebraska law against partial-birth abortion was struck down because it was said to impose an ‘undue burden’ in that it outlawed the most-practiced form of second-term abortions (D&E) as well as partial-birth (D&X), making it too difficult for a woman to obtain a late-term abortion, even though that aborted fetus may have the chance of viability.
Currently, the question of whether the unborn deserve tights is still very much a live issue within American society, being dealt with in different ways by all branches of the federal government, as well as state governments. The Partial-Birth Abortion Act was passed by Congress and signed by President Bush, but was heard on November 8, 2006 by the Supreme Court after multiple state courts struck it down (Gonzales v Carhart). A decision should come in the Spring of 2007. While not relating directly to abortion, the Unborn Victims of Violence Act makes a huge leap in protecting the unborn, making it a separate offense when an assailant attacks a pregnant woman and causes harm to the unborn child. Called “Laci and Connor’s law”, it stems from the vicious attack of Laci Peterson by her husband, which caused her death and the death of their unborn son.
Ironically, two people fighting to reverse Roe v Wade and Doe v Bolton are Roe and Doe themselves, or Norma McCorvey and Sandra Cano, respectively. Both are making attempts to get their cases reheard based on the facts that both cases stem out of lies, and that after 33 years of abortion-on-demand new evidence has arisen about abortion’s harmful effects and about the biological and scientific proof of life beginning at conception. However, Norma McCorvey’s attempt for a rehearing was denied by a Disctrict Court in Texas, because it was not made in a reasonable amount of time. Upon appeal to the Supreme Court, certiorari was then denied in February of 2005. Sandra Cano’s attempt was just recently denied certiorari by the Supreme Court after the 11th Circuit Court of Appeals denied her request for a rehearing.
The American Constitution provides rights and liberties that the people of other nations can only envy. The nation, though the Constitution and the rulings of the Supreme Court, has gone through vast bloodless revolutions. Those who were once considered property are now among the powerful in the American system. Women have gone from being under the rule of their husband to being an equal with him. Though these revolutions have made American a free nation, there is still one group who is not only being oppressed in a symbolic way, they are being killed because they are not considered citizens, and often are not even considered people, just as slaves in the sixteenth century. This group, the unborn, do not even have the ability to petition for themselves, as Blacks and women did. They must rely, while not even knowing or being able to comprehend their danger, on those in the world who feel that they also, through Supreme Court decision or even amendment to the Constitution, should be considered citizens of these United States, and given the rights of “life, liberty, and property” applied through the equal protection clause of the fourteenth amendment. Perhaps someday, “all persons born or naturalized…” will be extended to those persons yet unborn.
Works Cited and Bibliography
“American Civil Liberties Union”
Blackmun, Justice Harry. As quoted by Schwartz, Bernard. A History of the Supreme Court. Oxford University Press, New York: 1993. 341, 352
Chemerinksy, Erwin. Constitutional Law: Principles and Policies. Aspen Law and Business, New York. 1997. 558
Harlan, Justice. As quoted in Chemerinksy, Erwin. Constitutional Law: Principles and Policies. Aspen Law and Business, New York. 1997. 558
Schwartz, Bernard. A History of the Supreme Court. Oxford University Press, New York: 1993. 115
Stanton, Elizabeth Cady. “The Declaration of Sentiments: Report of the Woman’s Rights Convention Held at Senaca Fall, NY, July 19-20, 1848.” the liz library, 1998.
Taney, Chief Justice Roger. As quoted by Schwartz, Bernard. A History of the Supreme Court. Oxford University Press, New York: 1993. 119
United States Constitution. Compiled by Pauline Maier. Bantam Books. 1998. 82-84