Alito's Arrogance and the End of Roe

S E E D E D   C O N T E N T

This may be just me, but one paragraph in Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization stands out for its thoroughgoing mix of hypocrisy and dishonesty. Advocates of legalized abortion, Alito writes, argue that "without the availability of abortion … people will be inhibited from exercising their freedom to choose the types of relationships they desire, and women will be unable to compete with men in the workplace and in other endeavors."

But, Alito explains, the foes of abortion have the answer to this lament:

They explain that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted "safe haven" laws, which generally allow women to drop off babies anonymously; and that a woman who puts her new­born up for adoption today has little reason to fear that the baby will not find a suitable home. They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.

Now there are three things wrong with this rosy picture of childbirth. First, the all-caring nanny state that Alito describes—guaranteeing medical care, pregnancy leave, and freedom from discrimination—not only does not exist for most Americans but also has been blocked in large part by Alito and the others who form his majority (we do not know whether he has five votes or six, though he writes with the assurance of a ward heeler who knows the fix is in to stay). As of 2020, 91.4 percent of Americans do have some form of health insurance—but 30 million Americans do not. One reason that many do not is that the Court's conservative majority went out of its way to gut the Medicaid expansion provision of the Affordable Care Act, which offered health insurance to lower-income Americans; as a result of that decision, conservative states have refused to allow families within their borders to take advantage of this program. Since then, Alito himself, with the conservative majority, has made it clear that any employer with the vaguest kind of religious objection to contraception doesn't have to provide insurance that covers it—a gap that harms women in particular. Nor is this conservative majority particularly concerned with the injustice of sex discrimination on the job (remember Lilly Ledbetter?).

Second, the idea that most women seek abortion because they don't want to be bothered to raise a child—injected into the argument over this case by the ever-helpful Justice Amy Coney Barrett—is risible. Adoption actually was invented well before 1973, when Roe v. Wadewas decided; you can look it up. Women have many reasons for choosing abortion that have nothing to do with not wanting to be parents. They may have medical needs; a fetus may carry catastrophic genetic defects; the woman may be an underage child or a survivor of rape or incest. Adoption does not erase either the medical effects or the psychic scars that forced childbirth can inflict, and that may, for dozens of reasons, persist long after pregnancy is over.

But the third problem is that the final sentence gives away the game. The pretense of solicitude for women and their well-being is revealed as feigned. You may think you don't want a child, women out there—but many people see a fetus on a sonogram and fall in love with parenthood.

In other words, if only these pregnant women would keep an open mind, they wouldn't want an abortion. We know that because—well—we just know it in our life-loving hearts.

This isn't law; it isn't even theology; it's concern trolling dressed up like My Little Pony.

Alito is at pains to point out the flaws in the 1973 opinion in Roe v. Wade and the flaws in Planned Parenthood v. Casey, the 1992 case that "reaffirmed" Roe by rewriting its holding. That criticism is, in many respects, well taken. Criticism of the opinions has spanned the ideological gamut, from the late Justice Ruth Bader Ginsburg to her far-right friend Justice Antonin Scalia.

Roe approached the abortion choice as a medical matter to be decided by doctors, and Justice Harry Blackmun, who had been for nine years the resident counsel at the Mayo Clinic, wrote the opinion as if it were a memo outlining procedures for patient care. The result aspired to settle the question of abortion altogether, setting out when and how it could be regulated and when it could not—not really what a judicial opinion should do. Casey, three decades later, destroyed what it called the "essential holding" of Roe in order to save it. The three-justice plurality (Anthony Kennedy, Sandra Day O'Connor, and David Souter) replaced Blackmun's procedure manual with a legal doctrine no one had ever heard of: A regulation of abortion could survive judicial review if it did not constitute an "undue burden," a concept that has puzzled courts for the three decades since Casey.

But Dobbs, the case before the Court,is not a paper for a law professors' symposium to be assessed by a survey of the literature. It is a case about the very real rights of very real women who live today, not in 1973 or 1992. Their need for abortion isn't a matter of legal philosophy; it often is a matter of life and death. And as for them, Alito suggests, they should have known better than to rely on the right of choice just because the Supreme Court had enunciated it once and reaffirmed it 30 years later. Real reliance, Alito explains, is about "very concrete reliance interests, like those that develop in 'cases involving property and contract rights.'" The silly Casey plurality said that "for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." That reliance, Alito suggests, is such an airy concept that it has no reality at all: It "depends on an empirical question that is hard for anyone—and in particular, for a court to assess, namely, the effect of the abortion right on society and in particular on the lives of women." What you can hear in those words is the sound of judicial hands being washed. It's not our problem, the opinion says; it's yours.

There is genuine law in the Dobbs draft, but it is a very particular kind of law. Alito surveys legal history to find that the common law treated abortion after "quickening" (somewhere between 15 and 20 weeks of pregnancy) as murder. Reading that sentence reveals something else, of course—much of the common law did not treat abortion as murder before quickening. In other words, the common law system in some ways resembled we have today, when fetal viability marks the dividing line between when abortion can be banned and when it can't. Oh, but not so fast: Alito has found things in old law books that suggest that the eminent men of the English law didn't actually approve of abortion at any point. Similarly, a number of American states did not outlaw abortion before quickening, but so what? "The fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so."

C'mon, gang, we know they thought they could. They just were busy and didn't get around to it.

This kind of "history" reminds me powerfully of an incident I witnessed during my years as a religion writer. In 1977, the Episcopal Church became embroiled in a controversy about allowing women into its all-male priesthood—a move traditional "Anglo-Catholics" resisted as nearly blasphemous. At one panel, as a conservative priest denounced female "priestesses," arguing that women could not be priests because Jesus didn't have any female apostles.

A young woman awaiting ordination stood up in the audience and interrupted. "You know what I think?" she said. "I think there were female apostles, and the men just wouldn't write about them." (The Church approved female ordination and has to date survived.)

Nowhere have I seen a more aggressive example of this kind of "boys' rules" history than in Sam Alito's claim that there is no historical support for a woman's right to deal with her pregnancy as she chooses. (In case you thought him uncertain, he repeats it: "Zero. None.") Of course, the great men of the common law were men—and they wrote paeans to a law in which women were the property of men, without the legal right to own property, sign contracts, vote, or gain custody of their own children. These authorities, however, are "history" for Alito. And not just one source of history; they are the whole thing. Women, of course, have been dealing with pregnancy and childbirth for centuries, and a lot of evidence suggests that various forms of abortion were open secrets during that same period. But, like the female apostles, it just, well, doesn't count.

Alito's academic criticism of Roe alsohas a certain man-cave tinge to it: The academic critics he quotes are the former Stanford Law dean John Hart Ely, the former Harvard professor Archibald Cox, the current Harvard professors Mark Tushnet and Laurence Tribe, and the Columbia professor Philip Bobbitt. These are eminent and wise men, living and dead; some of them I know, or knew, and all of them I respect. But the all-male lineup seems jarring—indeed, like an intentional, misogynistic slight—in a discussion of a woman's control over her own body.

Alito insists that abortion is different from any other right "because it destroys what those decisions called 'fetal life' and what the law now before us describes as an 'un­born human being.'"

Thus, "to ensure that our decision is not mis­understood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

We have Sam Alito's word on that; many do not find that reassuring (I am one) and predict a renewed assault on contraception, LGBTQ rights, and same-sex marriage. That may come, but as scripture says, "Sufficient unto the day is the evil thereof," and this day has enough present evil to occupy us here and now. For the moment, the nation should focus on the very real and immediate effects this contemptuous judicial coup de main will inflict on real women, children, and families as soon as the edited version (even if softened in the editing process with soothing John Roberts-style rhetoric) is released.

For the same reason, I think that the swoons of horror coming from the right at this leak may safely be ignored. There have been leaks before—most recently when someone on the conservative side of the Court leaked that Chief Justice Roberts had changed his vote in the Obamacare cases. (That was done to pressure Roberts to conform to the conservative attack on the Affordable Care Act.) Leaks from the Court are not new, but they have been rare and (rightly) regarded as dishonorable.

But those were in a very different country, and besides, that Court is dead. The Court that readies itself to gut American women's reproductive rights is a very different beast. This Court has been transformed—in the broad light of day, with the collaboration of at least the three Trump appointees, who willingly joined the Trump/McConnell project—into an extension of the Republican Party. Its majority members are willing to troop to the McConnell Center in Louisville to bend the knee before their partisan patron and to do his bidding under cover of their black robes.

Justices like to speak of Congress and the president as the "political branches," implicitly claiming for the Court a place as "nonpolitical" and above partisan reproach. That locution is achingly obsolete today; few institutions in the United States are as openly partisan as the post-Trump Supreme Court.

So here, dear justices, is a lesson in politics. The White House and Congress must deal with leaks, and now so must you. Leaks are a fact of political life. Get used to them.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.

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