Supreme Court Justice Samuel Alito shocked the nation with his draft opinion in Dobbs v. Jackson Women’s Health Organization, which challenged the constitutionality of a Mississippi law that restricts abortions after 15 weeks of pregnancy.
In it, Alito calls for the de-facto dismantling of Roe v. Wade, the landmark 1973 SCOTUS decision that codified abortion as an American right. It is a fiery but lopsided bit of rhetoric from one of the most conservative justices in the nation’s highest court, whose thesis relies on the past to inform the future. “The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law until 1973,” Alito writes.
Roe exists on the argument that access to abortions, which isn’t mentioned in the Constitution, is nonetheless a “fundamental right” because it affects individual privacy, and must be legal under the Due Process Clause of the 14th Amendment. But Alito is prying at that clause with the decision, again, stating that there is no real historical precedent, and therefore no justification for abortion to be a fundamental right.
In that way, the justice frames the overturning of Roe as similar to the court’s 1996 decision to maintain state bans on assisted suicide in Washington v. Glucksberg, despite the argument that such suicide should be a right under the concept of “ordered liberty.” In fact, he goes so far as to worry about a slippery slope if Roe were to stand, claiming that trying to define standards around bodily autonomy “prove too much.” “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution and the like,” Alito writes.
If it feels an absurd logical fallacy, that’s probably because Alito’s argument smells a lot like gaslighting when it comes to his interpretation of America’s history with abortions. A cornerstone of the draft opinion is Alito’s claim that the Due Process Clause demands a “fundamental right” be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Given that the tradition in America and England is to restrict abortions, not allow them, Alito believes that the right should be abolished today. He even goes as far as to cite the writings of 17th-century legal scholar/witch-hunting dipshit Matthew Hale, who deems abortion “a great crime.”
But hold on: There is a long legacy of legal abortions taking place since the advent of America as a territory. As many scholars and observers have pointed out, English common law didn’t restrict abortions up until 15 to 20 weeks of pregnancy. And while some three-quarters of states did ultimately ban abortion, the trend didn’t take hold until after the Civil War, bringing into question how one defines whether something is, as Alito puts it, “deeply rooted” in “tradition.”
It sure feels like abortion is a thing that was happened throughout Colonial America, and it never went away in the following 200 years, bans be damned; historians suggest that by the 1950s, more than 800,000 abortions were taking place every year. In other words, abortions have always been happening, and for good reason: Access to safe abortions actually affects the material conditions and health of a woman’s life. Research has proven such over and over again, making abortion access, in practice, similar to a person’s right to contraception — another controversial issue taken up by the Supreme Court.
But Alito is opining as if he has no idea about this history, instead claiming that the prudent decision is to overturn Roe and let states decide, via their legislators and electorate, whether a person should be forced to carry a pregnancy to term, against their will. That course is the most democratic solution given the controversy around abortions, Alito writes. Once again, it seems like the Supreme Court could simply maintain Roe and let state courts hash out the specifics — an imperfect option, but one at least built on a bedrock of fundamental rights. Instead, Alito wants to tear it down to the studs, personal biases be damned.
Nowhere is this more obvious than in his insistence that the right of an “unborn human being,” and the need to prevent the destruction of “potential life,” is as significant as the rights of the person carrying it. While this is a relevant issue to define, there’s never been agreement in America, either socially or legally, on how to define the personhood of a fetus.
Elsewhere, Alito continues to use soft, subjective arguments to suggest that Roe cannot stand. He claims the decision was regrettable in part because it “sparked a national controversy that has embittered our political culture for a half-century.” But that’s a weird assertion if you consider that that banning abortion wasn’t a mainstream topic for conservatives in the run-up to Roe v. Wade. Instead, the core reason why conservatives began advocating heavily for bans on abortion had more to do with racial tensions than the genuine protection of unborn life. So while it’s true that the controversy has “embittered our political culture,” it’s strange to cite that as a criticism of Roe’s passage, as if Alito doesn’t understand how political movements can warp narratives around laws and rights.
Maybe weirdest of all, Alito claims the Affordable Care Act is a big reason America can get rid of Roe, because it provides pregnant people more health and family care resources than ever before. That’s some elite-tier bullshitting coming from someone who has repeatedly argued in favor of dismantling the ACA because it is unconstitutional. In fact, it’s worth questioning Alito’s objectivity in this whole fight when you consider his time fighting Roe back in the day, when he was an attorney for the Reagan administration.
Beyond feeling like a horrifying march toward the repeal of other human rights, Alito’s framing ignores how legal access to abortion has saved many lives across American history, while elevating his own conservative ideology (such as the value of an unborn life) as the criteria to seek. The court has long argued, through good decisions and terrible ones, that it isn’t a political institution. Yet it’s exactly Alito’s personal politics that are blinding him to the reality: We know what happens when abortions get banned, and it’s not a decrease in abortions. Only deaths and injuries go up, all of it disproportionately impacting the material conditions of people’s lives.
If that’s not enough justification for a right, what is?
Eddie Kim
Eddie Kim is a features writer based in Los Angeles, covering social and cultural issues for MEL.
