On Friday, the Supreme Court handed down its 6–3 ruling overturning a Mississippi abortion ban and 5–4 ruling ending the 49-year-old precedent Roe v. Wade and, with it, the constitutional right to an abortion in the United States. The majority opinion was authored by Justice Samuel Alito, a George W. Bush appointee. A version of the opinion was leaked last month.
When that draft opinion leaked, I analyzed the most extreme lines that vilified “abortionists” and “murderess[es],” and opened up the possibility that other unenumerated rights like birth control and marriage equality might be diminished or completely ended. The most radical passages, however, opened the door to fetal personhood laws that would ultimately criminalize abortions and even miscarriages as homicide.
Now that the final copy of the opinion is out, what has changed from that initial draft? It turns out, virtually nothing. Save for some stylistic and typographical changes, the official version appears to leave Alito’s words from the draft almost entirely unchanged. The one substantive change is the addition of sections seeking to rebut the dissenting opinion of Justices Sonia Sotomayor (Obama appointee), Elena Kagan (Obama appointee), and Stephen Breyer (Clinton appointee), as well as the concurring opinion of Chief Justice John Roberts (George W. Bush appointee).
What’s clear is that the final opinion, with the new additions, is even more radical than the extremely radical initial draft.
Below is an initial analysis of the most extreme and dangerous lines in Alito’s draft version of the Dobbs opinion, all of which are mirrored in the final. In addition, I’ve updated the analysis with a few extreme lines from Alito’s new passages criticizing the court’s other opinions.
Constitutional rights not “rooted in the Nation’s history and tradition,” such as the right to an abortion, are not legitimate rights at all.
Alito repeatedly claims that his opinion only covers abortion and should not “be understood to cast doubt on precedents that do not concern abortion.” But if you read the opinion in its entirety, it’s clear that Alito lays down the future groundwork for overturning any number of “fundamental” rights that purportedly do not have grounding “in our Nation’s history.” Alito lays out why such unenumerated rights grounded in “a right to privacy, which is … not mentioned” in the Constitution are bad:
The Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. … “Substantive due process has at time been a treacherous field for this Court,” … and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.
Sometimes the court has overstepped in accepting these rights, Alito notes:
On occasion, when the Court has ignored the “[a]ppropriate limits” imposed by “respect for teachings of history” … it has fallen into the freewheeling judicial policymaking. … The Court must not fall prey to such an unprincipled approach.
Again, these statements implicate all of the “liberty-based” rights. For good measure, Alito lets us know which other rights were not “mentioned in the Constitution” or allegedly grounded in our nation’s history: interracial marriage, contraception, the right not to be nonconsensually sterilized, the right to reside with relatives, the right to make decisions about your children’s education, the “right to engage in consensual” and private “same-sex intimacy,” and the right to same-sex marriage, just to name a few.
Alito implies that acknowledging rights that are not “deeply rooted in history,” such as these, could open the door to protecting the right to “illicit drug use, prostitution, and the like.”
In the passage criticizing the dissent, Alito acknowledges that—while he claims this ruling doesn’t jeopardize those other rights—the precedents are still subject to the court’s stare decisis analysis, which means they could be overturned in the future.
A right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” … It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.
Alito justifies overturning nearly 50 years of precedent because he says women don’t have any real reliance on Roe.
Alito writes of the 1992 ruling Planned Parenthood v. Casey—which struck down a Pennsylvania law that would have required married women seeking an abortion to notify their husbands—that the court came up with a phony reliance interest to justify upholding Roe on the basis of stare decisis. In his draft, Alito notes that women’s reliance on abortion is of a lower order than the reliance interests that arise in “cases involving property and contract rights.” The court, he writes, is “ill-equipped to assess ‘generalized assertions about the national psyche,’ ” with respect to the way abortion figures in the lives of women across the country.
It’s thus impossible to say, according to Alito, that women rely on Roe:
When a concrete reliance interest is asserted, courts are equipped to evaluate the claim, but assessing the novel and intangible form of reliance endorsed by the Casey plurality is another matter. That form of reliance 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.
Alito takes to task the dissenters for being concerned about the impact of this ruling on women but not about its impact on “prenatal life.”
The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. … the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.
That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life.
Alito cites outdated science and questionable common law from the 17th and 18th centuries to justify abortion bans that would criminalize women for terminating their pregnancies.
An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.
In delving into this ahistorical analysis, Alito uses the creepiest possible terminology to describe what has been for the past 50 years a common and legal medical practice. He repeatedly refers to reproductive care providers as “abortionists.” He obsesses over pre-Victorian medical terms with contested meanings, such as “quickening.”
Sir Edward Coke’s 17th-century treatise likewise asserted that abortion of a quick child was “murder” if the “childe be born alive” and a “great misprision” if the “childe dieth in her body.”
Alito also approvingly cites language describing one woman who had received an abortion as a “murderess.” And he considers other random 17th- and 18th-century punishments for abortion:
In 1732, for example, Eleanor Beare was convicted of ‘destroying the Foetus in the Womb’ of another woman and ‘there-by causing her to miscarry.’ For that crime and another ‘misdemeanor,’ Baere was sentenced to two days in the pillory and three years’ imprisonment.
Alito lays out what he calls a “proto-felony-murder rule” categorizing failed abortions that kill the mother as criminal. As if these passages aren’t a disturbing-enough foray into questionable science and morality from an era when women and children were regarded as the property of their husbands, he presses on into the 19th century to suggest that the reproductive health care practices of the time were somehow more “scientific” than modern practices. To do this he cites approvingly an 1848 case and terms like “in ventre sa mere”:
The Solicitor General offers a different explanation of the basis for the quickening rule, namely, that before quickening the common law did not regard a fetus “as having a ‘separate and independent existence.’ ” … But the case on which the Solicitor General relies for this proposition also suggested that the criminal law’s quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that “to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being.”
Again, Alito leaves the door open for “personhood” legislation, or even a future ruling recognizing the “personhood” of a fetus:
But even if one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins.
What are Alito’s primary sources for this dubious framework? One is a 1732 journal called Gentleman’s Magazine.
The passage on the dissenters criticizes them for their “theory of life” and opens the door for future rulings on “when prenatal life is entitled to any of the rights enjoyed after birth.”
Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “ ‘theory of life.’ ”
Alito misleadingly cites court precedent to rule that banning abortion is definitively not sex discrimination.
State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications.
To make this claim he cites two cases, one post-Roe and another post-Casey. Those are 1974’s Geduldig v. Aiello and 1993’s Bray v. Alexandria Women’s Health Clinic. But those cases were about disability rights for women who experienced complications during pregnancy, and the First Amendment rights of anti-abortion protesters, not about abortion itself. Most notably, Alito claims that the Bray court decided the “ ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus’ against women.” Again, though, that case was about protesters seeking to prevent women from having abortions, not the state mandating an abortion ban. What Bray actually says is this:
Whether one agrees or disagrees with the goal of preventing abortion, that goal in itself (apart from the use of unlawful means to achieve it, which is not relevant to our discussion of animus) does not remotely qualify for such harsh description, and for such derogatory association with racism.
The key qualifier there is “apart from use of unlawful means to achieve it.” One year earlier, the court had upheld Roe in Casey and determined that abortion bans were an “unlawful means to achieve it.”
Alito frames himself as a champion of women, who can now decide these issues at the ballot box—without acknowledging those ballot boxes have been rigged by Supreme Court decisions eviscerating voting rights.
Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.
Alito compares Roe and Casey to some of the most abhorrent precedents in Supreme Court history, including the ruling that upheld segregation.
An erroneous interpretation of the Constitution is always important, but some are more damaging than others.
The infamous decision in Plessy v. Ferguson, was one such decision. It betrayed our commitment to “equality before the law.” … It was “egregiously wrong” on the day it was decided. … Roe was also egregiously wrong and deeply damaging.
Finally, Alito lays out a laundry list of reasons lawmakers can have to ban all abortions, including such Orwellian straw men as “discrimination on the basis of … sex” and “the protection of maternal health”:
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. … These legitimate interests include respect for and preservation of prenatal life at all stages of development … the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.