I could also title this “A sharp turn away from abortion rights.” The gist of Justice Samuel Alito’s leaked opinion on abortion is that women do not have a constitutional right to an abortion, and never did. The Supreme Court’s 1972 decision in Roe v. Wade was “egregiously wrong from the start.”
To back up a step, the Court is working on an abortion case from Mississippi, Dobbs v. Jackson Women’s Health Organization. Court watchers have long speculated that the new conservative majority might take this opportunity to reverse Roe v. Wade (as well as another key decision, Planned Parenthood of Southeastern Pennsylvania v. Casey) and leave states free to write their own rules. Justice Alito’s draft opinion does exactly that: “We now reverse these decisions and return that authority to the people and their elected representatives.” Although it is only a draft, it must be taken very seriously, since its very existence indicates that Alito has been chosen to convey the majority opinion in the case.
Since the Constitution says nothing explicitly about abortion, the constitutional debate centers on the question of whether the right to terminate a pregnancy is implied by other rights, such as other provisions of the Bill of Rights or the due process clause of the Fourteenth Amendment. Alito bases his argument against abortion rights on the idea that any such implicit right must be “deeply rooted in this Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Alito finds that at no time before Roe did the nation recognize a woman’s right to an abortion.
While Alito’s historical account emphasizes how often abortion has been criminalized, it also reveals some important variations. “American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions.” Under common law, criminalization occurred mainly after “quickening–i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.” Although Alito doesn’t make the point, the decriminalization of first-trimester abortions by Roe does bear some resemblance to the situation in many colonies, states and territories before the trend toward full criminalization ran its course by around 1919. Alito may be overstating the case a bit when he speaks of “an unbroken tradition of prohibiting abortion on pain of criminal punishment.”
The larger problem with Alito’s historical argument is that it sets the bar so high for recognizing rights that it calls into question many other modern rights as well. The Supreme Court recognized the right to use contraceptives in Griswold v. Connecticut (1965), the right to racial intermarriage in Loving v. Virginia (1967), the right to engage in consensual sex acts in Lawrence v. Texas (2003), and the right to same-sex marriage in Obergefell v. Hodges (2015). Like abortion rights, none of these rights is explicitly in the Constitution or deeply rooted in US history. The argument that we do not have any implicit constitutional rights except those that have been recognized for a very long time would seem to rule out any modern expansion of such rights.
Justice Alito is aware of this problem, and he tries to get around it by arguing that abortion raises a more “critical moral question” than any of these other decisions. Here I find his argument rather slippery and unconvincing. On the one hand, he claims that “our decision is not based on any view about when a State should regard prenatal life as having rights as cognizable interests.” On the other hand, he says:
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both these decisions acknowledged; abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being”…None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.
With the careful phrasing, “what the law at issue in this case regards as the life of an ‘unborn human being’ (emphasis added), Alito manages to avoid embracing the view that a newly conceived embryo has the same value or right as a more fully developed and viable fetus; yet he acknowledges such a belief as a basis for considering abortion a particularly critical moral question. Apparently, that is his justification for reserving the authority over pregnancy to the state, while denying that pregnant women themselves have any rights in the matter.
I see at least two problems with this reasoning. First, it does not really distinguish the question of abortion from other questions of rights as clearly as Alito might hope. One could argue that any decision to have sex while avoiding bringing a child into the world raises a critical moral question. Certainly the Catholic Church has condemned as mortal sins not only abortion, but artificial methods of contraception, same-sex sexuality and nonmarital sexuality. And second, even if the abortion question is a weightier moral question than many other personal decisions, how does that confer on the state the right to make the decision for everybody, without regard to the beliefs, desires and circumstances of its individual citizens? By what reasoning do we come to the conclusion that individual citizens have no rights with regard to the most critical decisions affecting their lives? Alito seems to assume it, but he does not explain it.
To illustrate the problem, consider living wills. Many citizens make living wills in order to participate in decisions regarding their end-of-life care, often to refuse medical interventions that will prolong their life without regard to the quality of that life. These life-and-death decisions certainly raise critical moral questions. But the idea that this justifies letting the state make those decisions for us is a dangerous notion, and one that is offensive in a modern democracy. Remember all of the Republican fuss about “death panels,” just because Obamacare originally offered to pay for end-of-life counseling?
Missing from Justice Alito’s attempt to supplant personal rights with states’ rights is any requirement that states justify their abortion laws by any legitimate public purpose. He does not claim that banning abortion benefits the nation in any particular way, such as maintaining a high birth rate. (Those democratic countries that have worried about low birth rates have more often promoted family life with paid parental leaves, subsidized child care, family allowances and so forth. In this country, on the other hand, the same “pro-family” politicians who support coerced childbearing often turn their back on families the moment a child is born.) In the absence of any practical argument for denying women the right to choose, Alito is left with the argument for following historical tradition and the argument for reserving critical moral questions to the state. The first argument discourages the courts from interpreting the Constitution in the light of modern experience. The second invites religious traditionalists to legislate their morality for everyone in their state. I think that few constitutional scholars will find these arguments sufficient.
I have always found it interesting that the political party most known for favoring liberty, small government and limited regulation is also the party most eager to legislate sexual and reproductive morality. In my next post, I will discuss the political processes by which the anti-Roe minority in this country came to dominate the Republican Party and capture the majority of seats on the Supreme Court.