4 May 2024
On May 3rd, 2022, the public learned that the Supreme Court of the United States planned to reverse the women’s rights progress of the past fifty years. In the dead of night, Politico leaked a draft opinion written by Associate Justice Samuel Alito overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), one of the first draft leaks in the Court’s history, likely due to the case’s monumental impact [1]. While nearly two years have passed since Dobbs v. Jackson (2022) took effect, the opinion rests on legal arguments that are fragile enough to warrant correction. Although the opinion returned the sole power to restrict abortion back to state legislatures, the opinion leak led former Republican Minority Leader Mitch McConnell to state that “legislative bodies” at the “federal level” could “legislate in that area” [2]. The Republican leader worked especially hard over the past six years to assemble the final judicial votes needed to overturn Roe, refusing to fill former Justice Scalia’s Court seat until President Trump took office and filling former Justice Ginsberg’s seat a week before an election that his party lost. All five justices who voted in favor of overturning Roe in Dobbs v. Jackson Women’s Health Organization (2022) hold originalist perspectives and have applied this legal theory to justify the nullification of long established legal rights. To this end, Justice Alito crafted a flawed court opinion that overturned Roe, employed political bias, skewed court doctrine, and ignored the decision’s consequences.
Foundations in the Right to Privacy
The Court failed to extend their constitutionality considerations to the decision’s consequences, for legal restrictions forcing a woman to carry out a pregnancy bring about indirect rights violations. The bevy of Court cases Justice Alito cites as unrelated to abortion directly relate to forcing a pregnancy, like the right “not to undergo involuntary surgery” and avoid the “forced administration of drugs” [3]. Sometimes, birth requires a C-section to avoid putting the mother and child’s lives at risk, yet a surgery of this purpose performed on a mother who sought to avoid pregnancy constitutes an unconstitutional involuntary surgery. The act of carrying a pregnancy to term may require the administration of drugs to make the procedure safe, an act unconstitutionally-forced if the mother did not want to carry the pregnancy to term.
Additionally, laws recognizing life beginning at conception cause strange enforceability problems. Under such a law, when police find evidence of a woman intending to seek out an abortion, their next action remains unclear. The police probably would not let the woman go free unsupervised, so the Court potentially allows the government to restrain women in order to prevent intended abortions or self-harm. The gruesome possible scenarios stemming from the enforcement of abortion restrictions are an ideological deviation from a country legally respecting a right to privacy.
Further, the sixty-seven-page majority opinion does not mention the physical toll of pregnancy on a woman’s body at all. The blatant disregard for a woman’s bodily autonomy has plagued the minds of certain male justices throughout the Court’s history. Justice Byron White filed one of the two dissents in Roe, aligning with his judicial philosophy over substantive due process rights. However, in a similar privacy rights case, Griswold v. Connecticut (1965), Justice White claimed a law banning the use of contraceptives “deprives [married couples] of liberty without due process of law, as the concept is used in the 14th amendment” [4]. By “concept,” he is referring to substantive due process. Justice White believed the “liberty” falls short when applied to pregnancy, the exact point at which the woman carries the sole burden. Justice Alito cited Justice White’s dissent multiple times throughout his opinion to assert the Court in Roe merely pursued an “exercise in raw judicial power,” rather than grounding the right to an abortion in Court precedent [3]. Like Justice White, Justice Alito failed to see a connection between the constitutional protections in Griswold and the protections in Roe. His argument for the distinction lacks logic. He agrees with claims that “abortion is a unique act because it terminates potential life” [3], implying that birth control does not terminate potential life, even though it arguably does do this by preventing fertilization.
The “deeply rooted in history” fallacy
In multiple instances throughout the opinion, Justice Alito mentions the right to abortion is not “deeply rooted in history” and thus is nonexistent [3]. Originalists like Justice Alito often prescribe this burden of proof for an explicitly non-enumerated right to earn recognition. However, many fundamental rights protected under the 14th amendment today find absolutely no root in history. In a further attempt to discredit Roe, Justice Alito labeled the case’s “failure to even note the overwhelming consensus of state laws in effect in 1868” as “striking,” conveying that those who ratified the 14th amendment never intended to also protect abortion rights [3]. Alito should have considered that the “overwhelming consensus of state laws in effect” in 1868 contradicts newer protections for discrimination against women, established in the 1970s, and against minorities, established in the 1950s.
Justice Alito also attempts to find a historical foundation for abortion restrictions deeper in history. In his coverage of “English cases dating all the way back to the 13th century,” Justice Alito cites “two treatises by Sir Matthew Hale” which describe abortion as a “great crime” [3]. Knowing more about Sir Matthew Hale reveals Justice Alito’s attitude towards women under the law. Sir Hale was a famous English Jurist and Lord in the 1600s who created the common law marital rape exception, “the legal notion that a married woman cannot be raped by her husband” [4]. He also accused three women of being witches and sentenced them to hang during a time when witch trials were “rapidly becoming anachronistic” [4]. In good conscience, a scholar should not find legal basis in the judicial prescriptions of a foreign psychopathic misogynist.
Skewing the law
Outside the opinion’s content, the specific five originalist justices of the 5-4 voting majority on Dobbs v. Jackson show a willingness to skew the law in favor of their political motives. The same Justices upheld a circuit court’s stay on a district court’s injunction on an abortion bounty law in Texas last year [6]. Injunctions typically prevent a law from going into effect, while the court system sorts out a judicial issue within its text. The Texas state legislature sought to avoid court interference by muddying the enforcement body of their abortion restrictions, providing bounties for civil suits against abortion occurrences instead of utilizing police powers. The suit for an injunction targeted the Texas’ justice system, which would enforce and reward the bounties, but the 5th Appeals Court deemed the plaintiffs had no standing to sue because the court had not enforced the law yet [7]. The Supreme Court accepted Texas’ ploy, allowing the law despite its violation of clear Supreme Court precedent [7], and the Justice Department responded by stating the action made “no constitutional right safe from state-sanctioned sabotage of this kind” [6]. This willingness to mold the law to exert judicial influence extends to Justice Alito’s majority opinion.
For the bulk of the opinion, Justice Alito contemplated a long list of reasons for overturning thoroughly established judicial precedent, known legally as stare decisis. He invoked the same contrived lack of history and precedent claims mentioned earlier, and then moved to discredit Casey’s “undue burden” standard’s workability. He stated that the standard is unworkable for Courts to interpret due to the “vagueness” and subjectivity of the word “undue” and the “individual” considerations required for each case [3]. While many laws require an individual analysis on their merits, the egregious ignorance of criticizing a standard’s subjectivity proves more harmful. Fundamental standards of Court precedent, like strict scrutiny, require a somewhat subjective analysis of what constitutes a compelling state interest and a least restrictive mean. The facts of justiciable cases before the Court further define the rules for a standard overtime, a critical function of the highest court.
Overall, Justice Alito crafted a flawed court opinion overturning Roe, through which he employed political bias, skewed court doctrine, and ignored the decision’s consequences. He ignored related cases where the Constitution set up a right to abortion through privacy rights, thoroughly established in law, and provided insufficient support to wiping the doctrine. Alito and the four concurring justices conveniently tailored Dobbs to fulfill the promises of their appointing presidents to totally abolish Roe’s precedent. Chief Justice Roberts pointed out in his opinion that upholding Mississippi’s ban did not require overturning Roe at all, just the viability standard, but the Court acted outside of any judicial restraint to achieve their appointers’ goal. Judicial review predicated on partisan support opens the door to overturning fundamental rights in the future, rewarding political tactics over meritocratic assessments on judiciary appointments. In light of decisions made like this and the Court’s recent gift scandal, Congress should investigate reforms patching up the current checks and balances deficiency.
Image via Pexels Free Photos.
Works Cited
[1] Gerstein, Josh, and Alexander Ward. “Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows.” Politico, 3 May 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 Accessed 9 May 2022.
[2] Jackson, David, and Philip M. Bailey. “McConnell: National abortion ban is ‘possible’ pending Roe ruling.” USA Today, 6 May 2022, https://www.usatoday.com/story/news/politics/2022/05/06/gop-avoids-abortion-ahead-potential-scotus-ruling-overturn-roe/9631996002/?gnt-cfr=1 Accessed 9 May 2022.
[3] “Dobbs v. Jackson Women’s Health Organization,” Docket #19-1392, 2022.
[4] “Griswold v. Connecticut,” 381 U.S. 479, 1965.
[5] Armstrong, Ken. “Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Ideas on Rape.” ProPublica, 6 May 2022, https://www.propublica.org/article/abortion-roe-wade-alito-scotus-hale Accessed 9 May 2022.
[6] Durkee, Alison. “Texas Abortion Law To Remain In Effect As Appeals Court Blocks District Judge’s Injunction.” Forbes, 14 October 2021, https://www.forbes.com/sites/alisondurkee/2021/10/14/texas-abortion-law-to-remain-in-effect-as-appeals-court-blocks-district-judges-injunction/?sh=5e95d8d75fec Accessed 9 May 2022.
[7] ACLU. 2021. “Supreme Court Refuses to Block Texas Abortion Ban, Greenlights Bounty-Hunting Scheme.” American Civil Liberties Union. https://www.aclu.org/press-releases/supreme-court-refuses-block-texas-abortion-ban-greenlights-bounty-hunting-scheme
Policy & Political Review 