Heather Cox Richardson

Today, President Joe Biden signed an executive order to protect access to reproductive health care services two weeks after the Supreme Court overturned the 1973 Roe v. Wade decision. For almost 50 years, that decision protected the constitutional right of women to make health care decisions without the interference of the state. Without that protection, the president noted, states across the country have outlawed abortion, threatening the lives and health, as well as the economic security, of women across the country, especially women of color, poor women, and rural women.

Both the president and the Department of Justice have come out strongly for legislation to protect reproductive rights, saying that the government should not interfere in such a personal decision. Until the Democrats have enough senators to break a Republican filibuster in the Senate, though, Republicans will prevent any such measure from passing. In the meantime, Biden says he will use the power of the executive branch to protect women’s constitutional rights.

The executive order requires the Department of Health and Human Services to protect and expand access to abortion medication that the Food and Drug Administration approved more than 20 years ago. It will try to ensure that all patients have access to emergency medical treatment and to birth control. It will work to inform people about their right to reproductive health services, and convene volunteer lawyers to protect the rights of pregnant patients to travel from one state to another for medical care.

It will protect patient privacy by asking the Federal Trade Commission to fight the exchange of health-related data, including guiding consumers on how to protect their health care data on mobile apps.

It will protect those seeking access to doctors and clinics and will provide an additional $3 million in funding for them. It will provide leave for federal workers who need to travel for health care, and will continue to provide health care for military families and Department of Defense workers.

Today was a fitting day for Biden’s executive order, since tomorrow is the anniversary of the day in 1868 that Americans changed the U.S. Constitution for the fourteenth time, giving the federal government power to guarantee that state governments could not pass laws that treated some people worse than others.

The background to this constitutional amendment was that in the wake of the Civil War, former Confederates in the southern states had done their best to force their Black neighbors back into subservience. Through a series of laws known collectively as the “Black Codes,” state legislators in summer 1865 regulated how Black Americans worked, lived, worshiped, and conducted themselves, without any recourse to the law for protection when they were robbed, assaulted, raped, and killed.

But there was no way northern members of Congress were going to permit southern lawmakers, who only months before had been shooting at U.S. soldiers, to discriminate against the very men who had fought to save the United States.

Their solution was the Fourteenth Amendment.

The amendment overturned the infamous 1857 Dred Scott decision that, in addition to declaring that Black men were not citizens and did not have the rights of citizens, declared that democracy was created at the state level by those people in a state who were allowed to vote. In 1857, this meant white men, almost exclusively. If those people voted to do something widely unpopular—like adopting human enslavement, for example—they had the right to do so. People like Abraham Lincoln pointed out that such state power would eventually mean that an unpopular minority could take over the national government, forcing their ideas on everyone else, but defenders of states’ rights stood firm.

And so, the Fourteenth Amendment gave the federal government the power to protect individuals even if their state legislatures had passed discriminatory laws. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” it said. And then it went on to say that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

But the amendment had to be ratified. In the midterm elections of 1866, the driving issue was the election of state legislators who would either pass or reject the Fourteenth Amendment. President Andrew Johnson, who had stepped into the presidency when an actor had murdered President Abraham Lincoln the year before, stood against the amendment and backed throwing power to the state legislatures. His support gave southern terrorists the confidence to attack formerly enslaved people not only in private, but also in deadly public riots that killed as many as 1000 people before the election.

For their part, the Republicans who wanted federal protection of equal rights also turned to the people, but appealed to voters’ commitment to the principle of equality before the law. Senator James G. Blaine, Republican of Maine, later recalled, “The one…point…echoed and re-echoed by every speaker…was the adoption of the Fourteenth Amendment. It was evidently the unalterable determination of the Republicans to make that the leading feature of the campaign…to urge it though the press, to present it on the stump, to proclaim it through every authorized exponent of public opinion.”

Voters sided with the Republicans and the Fourteenth Amendment by a landslide against Johnson and the Black Codes. The Republicans won 143 representatives to Congress to the Democrats’ 49. The Republicans maintained similar control over the state houses.

“The importance…of the political struggle of 1866 cannot be overestimated,” Blaine recalled. “If the contest had ended [differently] the history of the subsequent years would…have been radically different. There would have been no further amendment to the Constitution,” and southern legislators would “sustain all the State laws already passed for the practical re-enslavement” of Black Americans, “with such additional enactments as would have made them cruelly effective…. [T]he result must have been a deplorable degradation of the National character and an ignoble surrender to the enemies of the Union,” who would then direct the government.

The state legislatures ratified the Fourteenth Amendment and added it to the Constitution in 1868, and in 1870 the federal government set out to enforce national equality before the law with the creation of the Department of Justice, whose first job was to bring down the Ku Klux Klan terrorists in the South who were assaulting and murdering their Black neighbors.

In the post–World War II era, the federal government again used the Fourteenth Amendment to protect citizens against discrimination at the state level when the Supreme Court began to use the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states. The civil rights decisions of the 1950s, 1960s, and 1970s, including the 1954 Brown v. Board of Education decision that outlawed segregation in public schools and the 1973 Roe v. Wade decision, come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.

Opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. They began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. That theory is now dominant in the Supreme Court. Two weeks ago, on June 24, 2022, it rejected the federal government’s power to protect civil rights in the states, and more than a dozen state legislatures have rushed to outlaw abortion procedures.

Today, Biden reached for the power embodied by the Fourteenth Amendment for the federal government to overrule state laws discriminating against citizens within their borders. But he also echoed the electoral fight to put that amendment in place when he told Americans: “We need two additional pro-choice senators and a pro-choice House to codify Roe as federal law. Your vote can make that a reality. I know it's frustrating, and it made a lot of people very angry. But the truth is this.... [The] women of America can determine the outcome of this issue.”