Originally posted by Ben Kenobi
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Originally posted by Ben Kenobi
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Who said anything about a "law permitting abortion"? We're talking about a consensual act between two private citizens, which is presumed legal unless and until specifically prohibited by the state. Passively declining to prohibit X is not a state action endorsing X.
Originally posted by Ben Kenobi
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Originally posted by Ben Kenobi
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No, no, no. The Equal Protection Clause prohibits state action that affirmatively harms or benefits one group more than another similarly situated, on the basis of an arbitrary distinction. The word "protection" by no means implies that a state cannot passively decline to "protect" one private citizen from another private citizen, and indeed it probably never would have been passed had the ratifiers perceived it to impose such a heavy burden on states.
This is the very essence of "state action doctrine" that has defined 14th Amendment jurisprudence for the almost 135 years since the seminal case of U.S. v. Cruikshank, which held in pertinent part (emphases added since I'm sure you'd love to totally disregard it):
...The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it secures 'the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.' These counts in the indictment [against private citizens] do not call for the exercise of any of the powers conferred by this provision in the amendment.
...When stripped of its verbiage, the case as presented amounts to nothing more than that the [private citizen] defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.
The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing [92 U.S. 542, 555] to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
...
U.S. v. Cruikshank, 92 U.S. 542 (1875)
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