Abortion Decision Draft

What’s Missing from Alito’s Decision to Revoke the Right to Abortion

In a leaked draft, the Justice points to “history and tradition” but ignores the context of both the past and the present.

By Jessica Winter and published in the New Yorker May 3, 2022

Just in time for Mother’s Day, a draft of the majority decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case focussing on the constitutionality of a fifteen-week abortion ban in Mississippi, was leaked to Politico, which published it on Monday night. In the draft, Justice Samuel Alito repeatedly cites the Fourteenth Amendment, which specifies that any right conferred by its due-process clause must be “deeply rooted in this Nation’s history and tradition.” The right to an abortion—which Roe v. Wade and its successor, Planned Parenthood v. Casey, ascribed to the due-process clause—has no such roots, Alito argues. “Until the latter part of the 20th century,” he writes, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” Alito is entirely correct that, in 1973, the Supreme Court was somewhat out of step with its time in codifying women’s rights. When Roe was decided, a married woman in the United States needed her husband’s permission to get a credit card, something that did not change until 1974. No state outlawed marital rape until 1975. No man was found liable for sexual harassment until 1977. Pregnancy was a fireable offense until 1978. Alito does not itemize forms of gender-based subjugation that persisted after Roe, many of which might be persuasively argued as “deeply rooted in this Nation’s history and tradition.” But the history of such discrimination offers helpful context for why some conservatives might have seen the legalization of abortion—and the freedom that it conferred on women—as so radical, so potentially destructive to the social order, that they would spend nearly fifty years working toward its reversal.

Other, more recent Supreme Court decisions have rested on the presumption of a right to privacy in the due-process clause—Lawrence v. Texas, for example, which struck down so-called sodomy laws across the country, or Obergefell v. Hodges, which enshrined the right to same-sex marriage. Some conservatives viewed these progressive victories in the same apocalyptic terms as they did Roe, and some progressive activists are legitimately concerned that, if finalized, the decision in Dobbs will open the door to dismantling L.G.B.T.Q. rights. But the draft opinion, which upholds Mississippi’s ban on abortion after fifteen weeks of pregnancy, is careful to specify that reproductive rights are special, even unique. No other issue involves “the critical moral question posed by abortion”—i.e., the rights, the standing, the precise ontology of “fetal life,” “potential life,” or “an unborn human being.” This uncertainty, Alito writes, requires the Court to “return the issue of abortion to the people’s elected representatives.” He adds, “At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process.” (The late Justice Ruth Bader Ginsburg saw Roe in broadly similar terms—as an interruption to a more organic, less contentious advance of reproductive rights—albeit from the other side of the aisle.) Roe intruded on the will of the people, Alito contends. The decision was “exceptionally weak,” an “abuse of judicial authority,” “egregiously wrong from the start,” and one that “short-circuited the democratic process.”

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If a majority of the Supreme Court decrees that Roe is, at its core, a subversion of American democracy, then there is some symmetry in the fact that four of the five Justices voting to end it were appointed by men who won the Presidency despite losing the popular vote, that three of them were appointed by a man who was twice impeached, and that one was appointed to an essentially stolen seat. A majority of Americans support abortion rights, but Republican-controlled legislatures in heavily gerrymandered states do not, and it is those lopsided governing bodies that are responsible for Mississippi’s fifteen-week ban, for Texas’s six-week ban, and for bills that would restrict or ban abortions in at least twenty-one other states should Roe be officially overturned. On the national level, gerrymandered districts in the House, conservative overrepresentation in the Senate, and Joe Manchin’s dedication to the filibuster will almost certainly doom any federal action that President Biden may attempt. Minoritarian rule, regardless of its merits, is also deeply rooted in this nation’s history and tradition, and it is grimly easy to foretell what will result from it now: an increase in adverse maternal-health outcomes, especially for poor women and Black and brown women; unjust prosecutions of women who suffer miscarriages; enormous pressure on already overtaxed clinics in states that preserve abortion rights; and more.

To the layperson, at least, the decades-long debate—undertaken by scholars on the left as well as the right—about if or where a right to abortion is found in the Constitution can look like a pedantic fixation. Childbirth can be physically and psychologically debilitating, and so can parenthood, even in the most favorable and desired circumstances; it would not seem to require a law degree to determine that carrying an unwanted pregnancy to term and being forced to give birth is a matter of life and liberty. Abortion rights are only a part of one of the central, most vexing, most consequential questions of our entire judicial system: Who does your body belong to? Who is in possession of you, of your self, at any given moment in your life? Is it you? Is it your parent, is it your spouse or sexual partner, is it a physician, is it a police officer or prison warden, is it a state legislature, is it the God you pray to? Is it Samuel Alito?

Lewis Powell, a moderate Nixon appointee to the Supreme Court, voted with the majority in Roe, following an incident in which a young colleague at his law firm came to him in desperation after his girlfriend bled to death as a result of a botched abortion. (Powell intervened with the local prosecutor on the young man’s behalf, and no charges were filed against him.) Powell was confronted with a body that had been harmed by the law, and he acted accordingly. In the Dobbs decision, Alito nods a bit at women’s lived experiences in a manner at once abstract and upbeat, implying that the need for abortion has diminished since 1973, owing to weakened stigmas against single mothers, prohibitions on pregnancy discrimination, and the fact that parental leave “is guaranteed by law in many cases,” among other reasons. He does not mention that American women have the highest maternal-mortality rates in the industrialized world, that America is the only industrialized nation without mandated paid leave, that sixteen per cent of its children live in poverty, that it spends something like two per cent of what some Scandinavian countries do on day care per toddler. Alito does not quantify what the end of Roe means, nor does he personify it; there are no women here. There is “the womb”—the generic vessel outside of which the fetus cannot survive—but there is no body. For all the suffering and havoc that may result from this decision, it is a bloodless text, on a matter that is all blood.