Steve May 3, 2022
8-legal-reasons-to-hate-justice-alito’s-draft-opinion-on-abortion

According to a leaked draft of the Supreme Court’s opinion on a Mississippi law that bans abortion at 15 weeks, a majority of the Supreme Court seems determined to scrap precedent and fundamentally change the constitutional landscape by ruling that women do not have a right to an abortion.

We ought not to be relying on a history filled with racism, sexism and homophobia to determine our fundamental rights today.

The U.S. Constitution protects fundamental rights, both those that are specifically listed, like the right to speech in the First Amendment, and those that are not specifically listed, including privacy rights such as the right to marry and the right to autonomy over your own body. Roe v. Wade, decided in 1973, first held that abortion was among those rights, and Planned Parenthood v. Casey in 1992 upheld that right. Both have shortcomings, but they are not so flawed that they should be struck down. 

Yet that is what Justice Samuel Alito’s draft opinion would do. He declares that Roe and Casey were egregiously wrong and overrules them. Such a decision would allow states to outlaw abortion, which most red states are poised to do. His opinion is not final, and the official decision is expected to be handed down only this summer. But it is worth conducting a close reading of his draft, obtained by Politico, and examining the key quotes that reveal some of the many problems with his legal analysis.   

1. The opinion claims that the right to abortion is not deeply rooted in our nation’s history and tradition. 

“Until the latter part of the 20th century, there was no support in American law for the right to obtain an abortion. Zero. None.” Alito thereby claims that there is no historical basis for a right to abortion. Even assuming Alito did not distort the historical record with some cherry-picked law office history — the pejorative term historians give to the error-prone historical analyses of lawyers and judges in cases — his claim is rubbish.

Rights can be stated at different levels of generality. The right to homosexual sodomy is a narrow formulation; the right to choose your intimate partner is a broader formulation. Stated narrowly, as Alito did with the right to abortion, the historical record may not support the right. Stated slightly more broadly, it becomes more obvious that the right is deeply rooted in our nation’s history and tradition. The right to make medical decisions is deeply rooted in our nation’s history and tradition. So, as previous Supreme Courts have noted, is the right to bodily autonomy, as well as decisional autonomy — such as the right to make major life decisions like whom to marry and whether to have children. These are not listed in the Constitution, but as the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”    

2. The opinion relies on history and tradition alone to determine our rights. 

“In deciding whether a right [is protected], the Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered Liberty,’” Alito writes in the draft. This formulation, together with a narrow articulation of potential rights, all but dooms any right that did not exist since the founding of the nation — a ludicrous standard given how both our culture and our values have progressed over time. We ought not to be relying on a history filled with racism, sexism and homophobia to determine our fundamental rights today. This approach merely perpetuates historical inequalities, like that between men and women.  

3. The opinion reaffirms that pregnancy discrimination is not sex discrimination.  

“The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretext designed to effect an invidious discrimination against members of one sex or the other.’” In other words, discrimination based on pregnancy or abortion does not automatically count as sex discrimination. In making this determination, Alito cited 1974’s Geduldig v. Aiello. If you want to talk about decisions that were grievously wrong the day they were decided, Geduldig is a good example. In that decision, nine men concluded that laws that discriminate based on pregnancy did not automatically discriminate against women because some women were not pregnant. Yes, that was the reasoning. It is like saying that an insurance company that refused to cover testicular cancer does not discriminate against men because many will not develop it. 

4. The court casually dismisses the equal protection clause.

“[W]e briefly address one additional constitutional provision that some … have now offered as yet another home for the abortion right: The Fourteenth Amendment’s Equal Protection Clause.” Although it is obvious to millions of women, Alito rejected out of hand the idea that abortion rights have much to do with equality. Yet as Planned Parenthood v. Casey recognized, without the right to control their reproduction, women cannot participate as equals in the social, economic and political life of the country. Alito devotes only a brief paragraph to this crucial aspect of why the right to abortion should be constitutionally guaranteed, and his main argument for dismissing it is that Geduldig and its progeny preclude it — despite the clearly flawed reasoning of Geduldig.   

5. The opinion claims there is nothing wrong with letting legislatures determine abortion access.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” In saying this, Alito glosses over the fact that the main point of constitutional protection for the vulnerable is to guarantee certain rights against the tyranny of the majority. Alito also blithely observes that “women are not without electoral or political power,” even pointing out that women are more likely to vote than men. Yet he ignores the more pertinent fact that women are not even close to half of those with the power to make abortion decisions (for example, women make up only 15.5 percent of Mississippi’s Legislature) despite their share of the population.    

6. The opinion puts many other rights at risk. 

“What sharply distinguishes the abortion right” is that “abortion destroys … ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’” This convoluted language is Alito’s way of trying to reassure us that the court is not going to overrule fundamental rights the Supreme Court has found to be contained in the Constitution but not specifically enumerated, such as the right to contraception access or interracial marriage or same-sex marriage. Except that if they wanted to, the conservative majority on the Supreme Court could easily write an opinion about any of these that concludes that the right is not deeply rooted in our nation’s history and tradition. There is no legal safeguard in this opinion that requires the court’s overhaul of fundamental rights to stop with abortion.  

7. The opinion violates the principle of separation of church and state. 

“There is ample evidence that the passage of [anti-abortion] laws was … spurred by a sincere belief that abortion kills a human being.” But the view that an embryo or a fetus is a human being and that abortion is murder is ultimately a religious view, and not a universal one at that. Rather, it is the deeply held belief of a vocal and powerful subset of Christians; in Reform Judaism, for instance, an abortion may be religiously mandated. 

The way to allow everyone to live their own truth is to keep abortion legal. Those whose religion condemns it can eschew it; those whose religion does not can opt to end unwanted pregnancies and control their own fates. Instead, contrary to the First Amendment command for separation of church and state and respect for everyone’s religious practice, this decision would impose one religious morality on everyone.  

8. The opinion engages in shameless hypocrisy.  

“In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” Yet that is exactly what Alito’s opinion does: It overrules decades-old precedent to impose conservative justices’ anti-abortion views because they finally have the votes to do so.

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