Roe is dead
I am not a constitutional scholar. I am not even a lawyer. But as I read the draft majority Opinion of the Court in the case of Dobbs v. Jackson Women’s Health Organization, penned by Justice Alito, even I can see that, if this draft stands, a woman’s decision whether to continue or end a pregnancy no longer belongs to her, but to the government. Roe is dead.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
While some women in some states may maintain the right to decide if and when to have a child, it will no longer be their constitutional right. In fact, despite strong majorities that favor legal abortion, 13 states have already passed “trigger laws” that would effectively ban abortions immediately following a decision from the Supreme Court to overturn Roe v. Wade. These laws would criminalize abortions in almost all cases; the South Dakota law provides for no exceptions.
Alito’s opinion is thoroughly dismissive of Roe’s legal basis, arguing that the finding reads more like legislation than a ruling. Alito issues blistering, derisive criticism of every aspect of Roe’s reasoning as “exceptionally weak,” “constitutionally irrelevant,” and “plainly incorrect.” He claims, “Roe was egregiously wrong from the start…. and [that] the decision has had damaging consequences.”
Setting aside my personal opinion and beliefs, for the moment, there are so many reasons to be frustrated by this opinion. An overarching theme throughout this draft is that Alito holds jurists in contempt who place their own personal beliefs or bias over a strict reading of the constitution. Yet, while I cannot with certainty tell you what Alito’s personal view on abortion is, as a moral or even a medical matter, I can tell you that at every turn he deliberately bends this tautological argument toward his clearly preferred outcome.
I offer this dissenting analysis in response to the apparent order of the Court’s majority.
I
The Equal Protection clause of the Fourteenth Amendment requires the Court to ensure equal justice under the law for any person within its jurisdiction, yet the majority dismisses it in one simple paragraph on the basis of precedents that supported discrimination based on pregnancy (Geduldig v. Aiello) and defended protestors’ rights to interfere with patients’ access to an abortion clinic (Bray v. Alexandria Women’s Health Clinic). In those precedents, the Court determined that a regulation that only affects one sex is not sex-based and 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” (Geduldig). And the “goal of preventing abortion” does not constitute “invidiously discriminatory animus against women” (Bray).
In this case, what the Court finds is that States may prohibit anyone from having an abortion regardless of the fact that the only people who can seek abortions are women (along with, of course, some transgender and nonbinary people). Because these restrictions do not apparently represent “invidious” discrimination against women, they pose no constitutional issue. Why does such discrimination need to be invidious by intent as opposed to simply discriminatory or subjugating in effect? This is a standard that the Court itself established.
Conveniently, the majority observes that “the Court has long disfavored arguments based upon alleged legislative motives,” so that there is no need to consider any potential or apparent motivation by society at large — or male legislators, specifically — to control women’s bodies based on their own religious beliefs or their view of a woman’s role in society or any other personal bias, for that matter.
II
The majority spills more ink to tackle Due Process from the Fourteenth Amendment, which has been used by the Court to protect individual rights, both stated and unstated in the text of the Constitution. If a right is not explicitly found in the Constitution, the Court has applied a history test, arguing that an individual liberty can only be supported as a Constitutional right if it can be shown to be “deeply rooted in this Nation’s history and tradition” and “essential to our Nation’s ‘scheme of ordered Liberty.’”
The Court offers a long treatise on abortion under common law in search of such support. It spends several pages explaining the treatment of abortion pre- and post- “quickening,” the term used to describe the fluttery sensation a woman may feel during pregnancy, which may be experienced between 18 and 20 weeks nulliparous and between 15–17 weeks primiparous. Despite a history of debate regarding the permissibility or criminality of abortion on either side of this milestone (not dissimilar from Roe’s reliance on viability), the Court declares that there is no common law right to abortion, regardless of gestational age.
In this thoroughly-researched journal article from legal scholar Anita Bernstein, Common Law Fundamentals of the Right to Abortion, citing the same 17th century common law scholars — Blackstone, Coke, and others — on a woman’s right to abortion, Bernstein reaches a different conclusion. In contrast, she concludes, the common law “…will honor [a woman’s] decisions to reject, expel, decline to help, and, under well-delineated circumstances, even kill. Rights reaching into the interior of our bodies are fundamental to the common law.”
Unsurprisingly, the majority finds no such support in U.S. history either. Writing in The New Yorker, Jill Lepore, a Harvard history professor and legal scholar, observes that “the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then.” Even by the time of adoption of the Fourteenth Amendment, in 1868, things weren’t much better.
Consider this debate from the floor of the U.S. Senate, in which Jacob Howard, a Republican senator from Michigan, got into an argument with Reverdy Johnson, a Democrat from Maryland. Howard quoted James Madison, who had written that “those who are to be bound by laws, ought to have a voice in making them.” Johnson was concerned because the Fourteenth Amendment uses the word “person.” Johnson asked, did Howard mean to suggest that women could be construed as persons, too?
Mr. Johnson: Females as well as males?
Mr. Howard: Mr. Madison does not say anything about females.
Mr. Johnson: “Persons.”
Mr. Howard: I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children are not regarded as the equals of men.
Still, the majority has no problem looking to our history filled with racism, sexism, and homophobia to determine our fundamental rights today, the effect of which is to clearly perpetuate historical inequalities, like that between men and women. Why do these historical precedents seem sacrosanct to the Court when Roe itself can be handily dismissed?
Constitutional scholar Caroline Mala Corbin reminds us that rights can be stated at different levels of generality. The right to abortion is a narrow formulation; the right to make personal medical decisions, however, is a broader formulation, which is obviously deeply rooted in our nation’s history and tradition. The majority, however, chooses the narrow formulation to reach its desired conclusion.
III
Among the numerous flawed arguments presented by the majority, perhaps the most consequential is its takedown of the Right to Privacy. In its 1973 decision Roe v. Wade, the Court recognized that the right to liberty in the Constitution protects personal privacy, including the right to decide whether to continue a pregnancy.
In recognizing the right to (pre-viability) abortion, Roe was consistent with earlier rulings by this Court recognizing a right of privacy that protects other intimate and personal decisions — including the right to marry a person of a different race, Loving v. Virginia (1967); the right to marry while in prison, Turner v. Saftey, (1987); the right to obtain contraceptives, Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), Carey v. Population Services International (1977); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson (1942); and many other rights we now take for granted. This case also relies on more recent decisions confirming the right to engage in private, consensual sexual acts, Lawrence v. Texas (2008), and the right to marry a person of the same sex, Obergefell v. Hodges (2015).
It is so clearly obvious to anyone that this decision jeopardizes all of these important precedents that the majority is compelled to preemptively explain why, in its opinion, that it does not.
None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in anyway.
What a relief. Because your personal sexual proclivity or your right to marry any person of your choosing are not moral issues (although this will be news to the Catholic Church and the Moral Majority), you need not worry about the findings in this case. Rest assured, the States of Texas and Mississippi will not be coming for you next.
IV
On the subject of Precedent, the majority makes the point that, of course, the Court has overruled precedent before, namely, in dismantling the insidious separate but equal doctrine (Brown v. Board of Education), in support of a minimum wage (West Coast Hotel Co. v. Parrish), and in protecting a student’s freedom of speech against a compulsory recitation of the pledge of allegiance (West Virginia Board of Education v. Barnett). The majority uses these three cases as examples of the Court overruling precedent, and Parrish, in particular, as an example of the Court returning power to the States. He clearly ignores — or fails to see — that all three of these are also examples of the Court ruling in favor of justice over injustice, in favor of individual human and civil rights over government overreach. This is the long arc of enlightened liberty that the Court has generally followed over the course of U.S. history, until now.
V and VI
In its rebuke of Roe, the majority also attempts to challenge its Quality of Reasoning and Workability. The Court argues that drawing a line at viability is fundamentally “arbitrary,” that undue burden is “inherently standardless,” and that viability lacks definition and is changing with time. Why is viability arbitrary? Legislatures draw such lines all the time. Why don’t we regulate the unfertilized egg or the sperm? Why don’t we (any longer) regulate the act of sex itself? As for undue burden, is it really so difficult to conclude that a regulation that leaves a single legal abortion clinic in an entire State creates an “undue burden?” And so what if the line of viability or the issue of a woman’s health change with time and circumstance? The Court asks, “…must these difficult questions be left entirely to the individual ‘attending physician on the particular facts of the case before him?’” Why not? This is what physicians are called upon to do every day. (That the Court assumes the physician is male is just icing on the cake.)
In its closing paragraphs, the majority attempts to rationalize the legislative interests of the State of Mississippi to restrict abortions. Among these interests, “the legislature also found that abortions performed after fifteen weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for non-therapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” “Barbaric” and “demeaning” are not only unscientific terms, but they are unprofessional opinions that are not supported by a consensus among physicians in regard to abortion. The Court and these legislators may as well be talking about cosmetic surgery. From the American Medical Association itself:
“Allowing the lawmakers of Mississippi or any other state to substitute their own views for a physician’s expert medical judgment puts patients at risk and is antithetical to public health and sound medical practice.”
VII
Where do we go from here? Ratification of the Equal Rights Amendment is one potential pathway, but it is certainly not guaranteed to be a solution to abortion rights.
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” — from the Equal Rights Amendment
In 2019, Virginia became the last State needed to pass the 38-legislature threshold, but the 1982 deadline has long passed and Congress is in a stalemate over extending the deadline — and in court over whether it needs to — in order for the Amendment to be ratified.
Decades ago, despite early bipartisan support, social conservatives waged a successful campaign against the ERA, using old canards that it would force women into combat, legalize gay marriage, and erode gender roles. Now, opponents are focused on a claim that the ERA would require taxpayer-funded abortions.
“A lot of the arguments that they had in opposition against the ERA are no longer relevant,” said Rep. Carolyn Maloney. “One of them is that we would have co-ed bathrooms. Wake up. Have you been on a plane? Have you been in a private home? And women are already in the military, on the front lines, they’re admirals, they’re generals. As for gay rights — gay rights have passed. So that is no longer an issue.”
The majority, however, in its reliance on Geduldig and other questionable, discriminatory precedents, shows us that the ERA’s effect on abortion rights isn’t so clear. The question of whether the ERA guarantees access to abortion would ultimately be left to the same Court that is eroding abortion protections today.
IN CONCLUSION
To borrow a phrase from Justice Alito, we end this where we began. While we cannot tell you what Justice Alito’s personal view on abortion is, it is clear that at every opportunity, the majority has deliberately bent its opinion toward its singular goal of dismantling Roe. Had it wanted to, the Court could have used this opportunity to write a new ruling affirming the right to an abortion; instead of simply criticizing Roe, the Court could have corrected it.
Its constructionist approach to the Constitution is a judicial philosophy, an activist choice. To approach an issue like this, without context or consideration for time and place, is cruel. The majority claims that people who believe abortion is a constitutional right “have no persuasive answer to this historical evidence,” but in making such a claim, it is only conceding the limitations of its own evidence and its own refusal to read the Constitution as it ought to be read in the 21st century. To reach into the common law for evidence of a woman’s right to an abortion in 2022 is patently absurd.
Lepore quotes nineteenth century abolitionist Sarah Grimké as saying, “The page of history teems with woman’s wrongs.” It does not, as she observes, teem with women’s rights. Women may have the power to vote today, as the majority notes, but they were utterly disenfranchised — and even considered chattel property, a mere extension of their husbands — for almost the entirety of the history on which the Court based its analysis and interpretation of the Constitution. That has got to have meaning and bear weight in this debate.
It is a sad day for women’s rights, a significant step back for equality, and an unfortunate day indeed for the institution of the Supreme Court of the United States. I respectfully dissent.
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n.b. Throughout this piece, I refer to women and women’s rights. In truth, I should include all those who identify as women (or have identified as women throughout time and history) and all people who can get pregnant or give birth, including many transgender and nonbinary people. The intersectionality of these issues is important to acknowledge, and I recognize I may have been able to do a better job in this piece.
