Since last week’s leak of a draft Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, Americans have been consumed by the end of Roe v. Wade. As Mark Joseph Stern observed even before the Court confirmed the draft’s authenticity, that draft, if indicative of the end result, “will lead to the near-instant prohibition of abortion in as many as 26 states.” It’s no wonder that in some of those states, women have started stockpiling the morning-after pill while reproductive justice leaders fear the criminal punishment of women whose pregnancies end, whether through abortion, stillbirths, or miscarriages.”
Beyond the practical consequences of overturning Roe, however, then there are the legal analyses of Justice Samuel Alito’s draft. Before detailing why that draft is so flawed legally, a brief outline of Justice Alito’s approach is in order. In concluding that Roe and Casey “must be overruled,” Alito reasons that because “the Constitution makes no reference to abortion,” the right to abortion, like any right purportedly implicit in the Constitution, can be recognized only if it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” That standard, known as the Glucksberg test, is lifted from the 1997 case upholding Washington’s ban on assisted suicide. And after a lengthy tour through his version of America’s historical experience with abortion, Alito concludes legal abortion is not “deeply rooted in this Nation’s history and tradition.” On the contrary, by the Fourteenth Amendment’s adoption, “three-quarters of the States had made abortion a crime at any stage of pregnancy.”
Alito is, of course, no stranger to abortion jurisprudence; his antipathy to abortion rights dates back decades, as I've written previously. But even had Alito arrived at One First Street without decades of anti-abortion baggage, his draft, according to critics, is as deceptive within its four corners as it is dangerous by extension:
• The “history and tradition” that matters predates women’s legal personhood. No, seriously. As Harvard historian Jill Lepore writes in the New Yorker, abortion’s omission from the plain text of the Constitution — and the “history and tradition” to which Alito then turns — is hardly accidental.
There is nothing in t[he Constitution] about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote.
And once the Fourteenth Amendment was ratified in 1868, nothing had changed: “[H]ardly anything in the law books of the eighteen-sixties guaranteed women anything. Because, usually, they still weren’t persons.”
- Alito’s historical account is dubious factually. Some scholars dispute its accuracy, noting that state bans in place at the adoption of the Fourteenth Amendment were not understood to ban abortion before quickening, or when the pregnant person could feel fetal movement at around four to five months.
- The draft denies Roe’s real-world impact on women. More fundamentally, the “history and tradition” test Justice Alito deploys, even if it did not reflect and reinforce women’s wholesale exclusion from the Constitution, privileges the distant past over our lived present. It ignores that Roe “changed the arc of women’s lives” in terms of their earnings, education, and workforce participation and denies the corollary of that progress: that “the financial effects of being denied an abortion . . . are ‘as large or larger than those of being evicted, losing health insurance, being hospitalized or being exposed to flooding’ resulting from a hurricane.”
- It also ignores the Court’s own sex equality cases. Separate and apart from the “unenumerated rights” cases from which Roe and Casey descend, there is a different history the Court could have revisited: its own precedents recognizing sex equality. That jurisprudence, built on cases Ruth Bader Ginsburg first argued and later decided, could just as easily undergird a right to abortion, which at least one amicus brief underscored. But at least judging by his draft, Alito pretends as if those cases never happened. Hearkening back to a 1974 case that, according to Linda Greenhouse, has not been cited in a sex discrimination case since that decade, he writes, “The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny” unless that regulation is used as pretext for sex discrimination.
- Alito hints this is only the beginning, not the end of the legal crusade. The draft “approvingly cites Justice Clarence Thomas’ debunked theory that abortion is a tool of eugenics against Black Americans.” NYU law professor Melissa Murray predicted last year the “abortion as eugenics” theme would be used to overturn Roe; now, anti-abortion advocates may see it as the seed of a constitutional prohibition on abortion, as opposed to allowing each state to decide for itself. Indeed, a weekend New York Times piece reveals that a “vocal faction” within that movement “is talking about ‘abortion abolition,’ proposing legislation to outlaw abortion after conception, with few if any exceptions in cases of rape or incest.”
- The draft endangers a host of other civil rights presumed to be settled law. Justice Alito’s draft is also dangerous because despite his plain disclaimer that overruling Roe and Casey would not undermine the Court’s precedents in areas “such as intimate sexual relations, contraception, and marriage,” it carries frightening implications for those and other widely-accepted unenumerated rights. How does he square that circle, you might ask? Abortion, Justice Alito suavely assures us, is “fundamentally different . . . because it destroys what [Roe and Casey] called ‘fetal life’ and what [the Mississippi statute] now before us”—and presumably Justice Alito himself—understands as an ‘unborn human being.’”
But what makes Justice Alito’s analysis truly disingenuous is its distortion of the one case on which it depends: Glucksberg. In that case, the Court found a person’s liberty interest, as recognized by Casey, was not limitless and did not guarantee terminally-ill adults the right to end their own lives. Yet in distinguishing physician-assisted suicide from “those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment,” the Court left no doubt which decisions and history it meant. In fact, it expressly lists them in a footnote, as the clinic’s lawyer reminded Justice Alito at oral argument, that includes Griswold v. Connecticut, which established a right to contraception; Loving v. Virginia, which guaranteed the freedom to marry a person of another race; and Roe itself, noting that that opinion “stat[ed] that at the Founding and throughout the 19th century, ‘a woman enjoyed a substantially broader right to terminate a pregnancy.’”
That discussion is why, in holding that due process encompasses the right to same-sex marriage in 2014’s Obergefell v. Hodges, Justice Kennedy described any application of Glucksberg’s “history and tradition” test as “inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.” Indeed, Kennedy explained, “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. . . . [R]ights come not from ancient sources alone. They rise too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” And the Court’s equal protection jurisprudence, Kennedy noted, itself had “recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”
In other words, Obergefell treats Glucksberg as wholly inappropriate for any analysis of marriage and intimacy rights. In fact, in dissenting from Obergefell, Justice Roberts — who, as of this week, had not joined Justice Alito’s opinion in Dobbs — went even further, complaining that Obergefell “effectively overrule[d] Glucksberg.”
So if Glucksberg itself held that decisions like Loving v. Virginia, Griswold v. Connecticut, Roe, and Casey, which established our rights to interracial marriage, contraception, and abortion, fulfilled its standard and Obergefell distinguished Glucksberg as irrelevant to marriage and intimacy, how can Justice Alito justify overruling Roe with a case that, by its own terms, recognizes its vitality? Well, that’s a really good question—and one that Steve Vladeck, Dahlia Lithwick, and Barry Friedman suggest has no meaningful response. Alito’s draft is explicable only as “the triumph of politics over the law." There was not “a change in the rectitude of the legal principles but in the identity of those who articulated them.”
Still, I hope the expected dissents expose this fatal flaw of Alito’s analysis, among others. Highlighting its legal contortionism won’t make the holding any less binding. Nor will it offer any comfort to the millions of Americans whose options, identities, families, and lives are now at risk. But as Justice Alito knows well, today’s dissent can grow tomorrow’s revolution. Watch this space.