[Congressional Record Volume 168, Number 116 (Thursday, July 14, 2022)]
[Senate]
[Pages S3300-S3302]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                 Freedom to Travel for Health Care Act

  Mr. KAINE. Mr. President, I rise to offer my own thoughts on the 
Dobbs decision that the Supreme Court rendered a couple of weeks back 
right after we went into a July Fourth recess.
  My colleagues were on the floor earlier advocating for a bill that 
would go after the pernicious practice of States in trying to penalize 
women from traveling to seek reproductive healthcare. I am a strong 
supporter of that legislation. I understand it will be proposed for 
floor action later today.
  I wanted to focus on two particular elements of the Dobbs decision 
that, as a former civil rights lawyer, struck me very, very deeply. 
Never in my life--I am 64 years old--has the Supreme Court taken away 
constitutional rights that had been counted on by generations of 
Americans. The Court has narrowed rights, redefined rights, articulated 
new standards for judging rights, but they have not taken rights away.
  In this instance, the Supreme Court took away rights that had been 
established in both Roe v. Wade and Planned Parenthood v. Casey. They 
took away those rights for women to make reproductive healthcare 
decisions and ruled that the 14th Amendment to the Constitution--which 
protects citizens' ability to enjoy privileges and immunities of other 
States and persons' abilities to be treated equally under the law and 
not have life, liberty, or property--be taken from them without due 
process.
  The Court ruled that the 14th Amendment, the Constitution, had 
nothing to do with women's reproductive rights. In my view, that is a 
horrible

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misreading of the history of the 14th Amendment.
  Further, the Court went on to say, in sort of a sunny way, but no 
worries. You can now rely on State legislatures to solve these issues.
  What I want to do is address how wrong the Court is about the 14th 
Amendment and how their belief that reliance on State legislatures is 
somehow a substitute for constitutional protection is so fundamentally 
wrongheaded.
  What is the 14th Amendment? Before the 14th Amendment was passed--
this is hard to believe--the Constitution had no definition of what it 
was to be a U.S. citizen, none. And the pre-14th Amendment Constitution 
also established a system of laws in this country where you were 
primarily subject to the laws of your State. The 50 States could have 
very different laws. A person from Virginia visiting Maine, for 
example, could be treated by Maine laws in a harsh and punitive way 
just because they happen to live in Virginia.
  That was the way the Nation used to be. We were more citizens of 
States than citizens of the United States of America. The pre-14th 
Amendment Constitution led to one of the seminal decisions in the 
history of the Court: Dred Scott v. Sandford, in 1856, where the Court 
ruled that no person of African descent, even a free person, could be 
considered a U.S. citizen. Even if their families had been in the 
country for more than 200 years, they could not be a citizen.
  In the aftermath of the Civil War, this Congress, this Senate, the 
States of this Nation banded together to pass three very critical 
amendments, the first, the 13th Amendment banned slavery. The 15th 
Amendment banned States from blocking people from voting based on the 
color of their skin.
  But what the 14th Amendment did, finally, after 90 years from the 
beginning of the Nation, the Declaration of Independence, what the 14th 
Amendment did was define what it is to be a citizen of the United 
States.
  There was a definition, for the first time, if you were born here or 
naturalized, you are a citizen of the United States. And citizens of 
the country were given rights to not be discriminated against because 
of moving into other States, privileges and immunities accorded to all 
citizens.
  No person shall be deprived of equal protection of the law. No person 
shall be deprived of life, liberty, or property without due process. 
For the first time in the Constitution, we began to not just be a 
collection of people living in 50 States but actually have a definition 
of what it is to be an American.
  I don't have enough time to go over the whole history of the 14th 
Amendment, but where it really begins is in World War I.
  In World War I, many States, including the State of Nebraska, made it 
illegal for parents to teach their children German. Some even made it 
illegal to learn other languages. We were in the midst of the First 
World War, and so States made it a criminal offense for teachers and 
parents to teach their children German.
  The case of Meyer v. Nebraska came to the Supreme Court in the early 
1920s, a family and an instructor challenging this State law. And under 
the 14th Amendment due process clause, the Court unanimously, in an 
opinion by Justice McReynolds, said: Wait a minute. What is it to be an 
American?
  Well, the 14th Amendment doesn't say anything about language 
instruction. It doesn't say anything about education, but the 14th 
Amendment created a national identity, and clearly being an American 
must involve the ability of a family to decide if they want to teach 
the children their native language or practice an occupation, elicit a 
whole series of things that were naturally connected with what it was 
to be an American citizen.
  That was the first use of the 14th Amendment, to basically say: 
Clearly, if you live in this country, you get a zone of protection to 
make decisions that the criminal law of States and the Federal 
Government cannot intrude upon.
  A few years later, hard to believe, during massive Ku Klux Klan 
activities the State of Oregon made it a criminal offense to send your 
children to parochial schools. There was anti-Catholic sentiment that 
was being drummed up by the Klan in Oregon and elsewhere, and so now 
the criminal law of Oregon was marshaled against parents who wanted to 
send their kids to Catholic schools.
  And, once again, a unanimous Supreme Court said: Hold on a second. 
The 14th Amendment says nothing about education, but this is a 
deprivation of liberty in such an extreme way. To be a citizen of this 
country means you should have the ability to make decisions about the 
education of your children and no State can use the criminal law to 
deprive a parent or child of that liberty.
  And just as in Meyer v. Nebraska, when the 14th Amendment was used to 
strike down prohibition on foreign language instruction, Pierce v. 
Society of Sisters, the 14th Amendment was used to strike down a bar on 
attending parochial schools.
  Fifteen or 20 years later, the State of Oklahoma had a statute that 
said if you get convicted of a crime three times, you will be 
sterilized. Passing a check, making a false statement on a loan 
application--habitual criminal law, you would be sterilized. That was 
the law that was passed. And it was a law that was pretty common in 
other States. In Virginia, for years, people were sterilized if the 
State judged that they were ``feebleminded.''
  In Skinner v. Oklahoma, the Court said: Under the 14th Amendment, it 
says nothing about procreation and nothing about sterilization, but 
could there be a deprivation of liberty more severe than being 
sterilized so that you can't have children for life if you were in 
prison for an offense that might be just an offense that would have you 
there for a few years?
  And so even though the 14th Amendment didn't specifically discuss 
sterilization, the Court's rule was this comes with being an American 
that you have some zone where you are protected to make decisions in 
your own life without the long arm of the criminal law putting you in 
prison or, even worse, maiming your body and making you unable to have 
descendants forever.
  An important case in Virginia, 1966, Loving v. Virginia, Virginia 
like many States made it illegal by the criminal law to marry someone 
whose skin color was different. Richard and Mildred Loving got married 
in Caroline County, and the police broke into their bedroom hoping to 
find them having sex. They pointed to their marriage certificate on the 
wall.
  They were arrested and jailed. The judge said that your only path out 
of jail is to move out of Virginia. They moved to DC, but they couldn't 
come back and visit their families, their mothers and fathers and 
sisters and brothers. And eventually, they challenged the Virginia law, 
and it went up to the Supreme Court. And under the 14th Amendment, the 
Supreme Court said, Well, yes, the 14th Amendment doesn't say anything 
about marriage, but there is something about being an American that 
gives you the right to marry whom you choose without the long arm of 
the criminal law forcing you to leave the State of your birth and exile 
yourself from your own family.

  And so in Loving v. Virginia, the Supreme Court struck down anti 
miscegenation bans, which still existed in Virginia and many other 
States.
  A few years later, Griswold v. Connecticut, the State made it a 
criminal offense to use contraception. The Supreme Court: Well, there 
is nothing in the 14th Amendment about contraception, but clearly, 
there is this zone where Americans can make decisions without the long 
arm of the government throwing them in jail, and contraception is one 
of those areas.
  Roe v. Wade, a few years later, the State of Texas criminalizing 
women and providers for seeking an abortion. The Court used the same 
rationale. Well, the 14th Amendment, the word ``abortion'' isn't in it, 
we will grant you that, but all the way back to the passage of the 14th 
Amendment and certainly back to the Meyer v. Nebraska case, we have 
said that being a citizen of this country gives you some rights that 
the government can't, by criminal law, take away from you.
  Since Roe, there has been Casey reaffirming that right. Since Roe, 
there has been Lawrence v. Texas saying a State can't make it a crime 
to have sex with a same sex partner when they

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don't make it a crime to have sex with a partner of an opposite sex.
  Again, the 14th Amendment says zero about intimacy or sexual 
relations or reproduction, but there is a zone of decisions we are 
entitled to make as citizens of this country that the criminal law 
cannot intrude upon.
  Obergefell, you can marry someone of the same sex, same rationale.
  So when the Supreme Court said: Well, there is nothing about abortion 
in the 14th Amendment, well, they are right. The word ``abortion'' is 
not in the 14th Amendment. But it has been clear now for more than 100 
years, and it was really clear when the 14th Amendment was added to the 
Constitution that we are no longer just citizens of 50 States; we are 
citizens of a country that believes individuals have decision making 
power and autonomy, and the criminal law of this country can't reach in 
and throw you in jail for making decisions about how you operate the 
most intimate areas of your life.
  That is why the Supreme Court's decision in Dobbs is so destructive. 
It is as if they do not understand the history of this country before 
the 14th Amendment, when there was no definition of citizenship, and it 
is as if they do not understand what the 14th Amendment was designed to 
do.
  I will conclude by making one other comment. The Court sort of 
sunnily suggests that, well, no worries; abortion now gets no 
constitutional protection, but this can be resolved by State 
legislatures.
  It was State legislatures that were the problem that the 14th 
Amendment was designed to address. It was State legislatures that 
passed the laws about slavery. It was State legislatures that 
prohibited women in the State of Illinois from taking the bar exam. It 
was State legislatures that imposed all kinds of restrictions upon the 
right to vote.
  So the notion that, OK, there is no constitutional protection for 
privacy anymore, but State legislatures will take care of it is a 
fundamental misunderstanding.
  And why weren't State legislatures sufficient? It was because slaves 
weren't represented in State legislatures, and women, at the time, 
weren't represented in State legislatures. And so we needed a zone of 
protection for decision making because people who have traditionally 
not been represented in State legislatures or this Congress can hardly 
look with confidence on the ability of a majority that does not include 
them to protect their interests.
  One example, Congress today, the U.S. Congress today is about 26 
percent women. That is our North Star in our history. That is the best 
we have ever been.
  Guess what. That ranks us in the world, if you look at national 
parliamentary bodies that ranks us about 75th, below the global 
average, below nations like Mexico, below Iraq and Afghanistan, far 
below leading nations like Rwanda, where more than 50 percent of the 
legislature is women.
  To say to the women of this country: We are taking away rights you 
have relied upon for more than 50 years but no worry, no worry; you can 
go to the State legislature, where you are dramatically 
underrepresented, which is the case in most of our State legislative 
houses, you can go there, and they will give you a fair shake, is to 
put on blinders instead of looking at reality.
  The 14th Amendment was put in the Constitution for a reason. It was 
to give a right for individual decision making to every citizen in this 
country, no matter whether they were politically powerful or not, no 
matter whether there was anybody in the legislative body who looked 
like them or not, and to say that being an American gave you those 
rights and those rights couldn't be taken away couldn't be taken away 
by the long arm of the criminal law in statutes that were elected, 
enacted by State legislatures where you were not represented, that is 
why this ruling is so destructive.
  And that is why my colleagues and I must work so hard to make sure 
that we don't devolve back to a pre-14th Amendment society, where your 
ability to exercise fundamental decisions depends upon the ZIP Code you 
were born or live in, but that instead we accord the right to make 
fundamental personal decisions equally to everyone who is an American.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, let me thank my colleague from Virginia. 
Every Member of the U.S. Senate should have heard his words and, if 
not, read his words to understand the gravity of the decisions by the 
Supreme Court and the threats that have been made by Justice Thomas to 
venture into even more areas, depriving us of our basic constitutional 
rights in the name of States' rights.
  I want to thank the Senator from Virginia. He gave a big part of his 
life to civil rights litigation. And if you are a lawyer and heard his 
presentation today, you would not want to be on the other side of the 
courtroom. He is convincing; he is well-prepared; and he explains with 
clarity why this is a moment in history which we should not ignore.

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