In Samuel Alito’s draft of the opinion that is likely to overturn Roe v. Wade, the conservative justice makes a familiar argument about the ruling that he seeks to overturn: that Roe was a poorly reasoned decision that isn’t based on anything in the U.S. Constitution.
Here is Alito’s version of that argument, which comes in the second paragraph of the 98-page draft (the first paragraph acknowledges Americans’ divergent views on abortion itself):
For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. … After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by the legislature.
This reasoning sounds logical enough. The Supreme Court is not meant to legislate. It is tasked with parsing and interpreting the Constitution—to understand it so it can enforce it.
But there’s a major problem with the argument that Alito makes here and that others have made before him: It ignores the context in which the Constitution was written, and who it was written by and for.
The right to abortion is not explicitly enumerated in the Constitution because the Constitution does not concern itself with the rights of women. As originally written, the Constitution did not even guarantee women the right to vote—it endowed no one with that right aside from propertied white men. The omission of abortion, then, says less about the issue itself than about who the Founding Fathers considered people.
Nearly 200 years after the Constitution was drafted, in the late 1960s and early 1970s, women across America pushed to liberalize restrictive abortion laws. These advocates were coming into their own as professionals, and they realized that reproductive autonomy was essential for them to live full lives.
I interviewed one of those women recently. Ann Hill started law school at Yale in 1968, getting admitted only because so many men were fighting in Vietnam. In her first few weeks of school, she realized she was pregnant, and chose to get an illegal abortion. In the aftermath of that procedure, thinking about how she’d been forced to risk her life to control her reproduction, she got angry. “I was furious that … a whole state, a whole country would place women in jeopardy,” she told me. “I was bound and determined to change it. So nobody else, no other woman would have to go through the danger and the fear and the anger that I went through when I realized that I was a second-class citizen.”
Her usage of second-class is intentional; it’s an apt description of how the Constitution and those who interpreted it regarded women in 1968. Hill would spend her three years in law school honing an argument that a woman’s right to abortion can be found in the Constitution—that, among other places, it’s covered by the 14th Amendment, which guarantees all people equal protection under the law, and that pregnancy and childbirth can constitute cruel and unusual punishment under the Eighth Amendment. Those claims formed the basis of a case Hill brought with other lawyers against the state of Connecticut—a case she won.
The argument that won the day in Roe—what became the basis for women’s right to abortion nationwide—was based on the right to privacy, another point that Hill and her fellow lawyers seized on in their case. The Supreme Court ruled that such a right could be found in the 14th Amendment’s due process clause, which forbids deprivation of “life, liberty, or property, without due process of law.” This has historically been viewed as a weak justification, even by liberals, a fact that Alito pointed out in his draft opinion. But it’s worth remembering that the 14th Amendment was one of a suite of amendments that was enacted after the Civil War to correct the wrongs of slavery, and to address the fundamental failings of the Constitution itself.
This is what Samuel Alito leaves out when he says “the Constitution makes no mention of abortion.” With regards to abortion, the most notable thing that’s missing from the Constitution is the perspective of anyone who might get one. When the right to an abortion was enshrined in America, it was in large part because of women like Ann Hill, who dared to imagine that the Constitution’s sweeping language about equality could apply to them too.