DIGEST May 2022
Egregiously wrong and exceptionally weak
“We hold that Roe and Casey must be overruled.” As I read the 98-page draft majority opinion of the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization leaked on May 2nd, I felt profound shock and horror. A fundamental right, in place for nearly 50 years, stripped away just like that!
But I was not surprised. Given the new make up of the Court, it’s no surprise the ultra-conservative majority would jump on the opportunity to reverse 49 years of precedent and decide that the US Constitution does not protect the right to abortion. (See December 2021 Famous Feminist Newsletter)
Republican lawmakers immediately expressed outrage at the leak. I served as a law clerk on the Supreme Court of Canada in 1991-1992. Yes, leaks like this are a very rare occurrence at the Supreme Court or Constitutional Court level. But they’re not unprecedented. Roe itself was leaked to Time magazine in 1973 , just prior to the judgment’s publication.
The true outrage isn’t the leak, it’s what Justice Alito wrote. It will likely be the majority opinion, barring a defection from one of the conservative justices to a possible Roberts opinion that takes a slightly more moderate approach while still curtailing abortion rights. (A defection the leak was likely trying to forestall, as has been argued by Professor Amy Kapczynski of Yale Law School―I think she’s right.)
Alito’s opinion is shocking in its language and implications.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” Wow. Roe withstood inquiry and scrutiny by multiple courts over two generations, including the Supreme Court itself in 1992 in Casey v. Planned Parenthood, but we should now believe Roe was completely mistaken and poorly reasoned? In fact, Justice Harry Blackmun, who wrote the majority in Roe, worked on it for almost two years, and the case was heard twice by the Supreme Court, because two justices retired during the process. Blackmun spent time in the library of the Mayo Clinic in Minnesota to research the history and practice of abortion, which he outlined in detail in his judgment. The six other Justices who joined him in the 7-2 majority included luminaries William Brennan and Thurgood Marshall. Blackmun’s journey as a judge is told with verve and insight by the great Supreme Court reporter Linda Greenhouse in Becoming Justice Blackmun, which I highly recommend.
As is being widely noted, two aspects of Alito’s judgment stand out as particularly dangerous for the future of civil rights in the United States. The first is his claim that, in order for a right to be protected by the Constitution, it needs to be spelled out in the Constitution, and its first eight Amendments adopted in 1791. “The Constitution makes no express reference to a right to obtain an abortion…” Well! It does not make reference to many other rights, such as the right to use contraception, to have sexual relations with or marry someone of a different race or of the same sex, or to choose the type of education one’s children should receive. Yet these are all rights that the Supreme Court has recognized in previous decisions.
The second is Alito’s focus on the need for rights, if they are not explicitly mentioned in the Constitution or its first eight Amendments, to be “deeply rooted in this Nation’s history and tradition” in order to be protected. Alito finds no such history or tradition (and in this, departs from the findings in Roe, where Justice Blackmun had concluded that abortion was a longstanding practice in America and that restrictions on abortion were a recent—19th century—phenomenon). But if the only rights that are protected under the Constitution had to pre-exist it, whose interests does this Constitution serve? It certainly can’t be of much assistance to any woman, Black person or person of color, Indigenous person, LGBTQ person, or other vulnerable persons. The Constitution was written after all, by older, wealthy, white, heterosexual (at least publicly), cisgender men, most of whom were slaveholders.
As a result, Alito rejects the Court’s longstanding interpretation of the right to liberty spelled out in the Fourteenth Amendment, an interpretation described as “substantive due process” that has underpinned the right to abortion, but also the right to use contraception (Griswold), or to have sexual relations with a person of the same sex (Lawrence), among others. The prospects are terrifying. Last week, Jim Obergefell, the plaintiff in the landmark 2015 same-sex marriage Supreme Court ruling, expressed deep concern about the impact of this reasoning on the right to abortion, and its potential ramifications in other cases.
Alito dismisses those fears by asserting that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But, as Justice Sotomayor told the Solicitor General of Mississippi who made the same claim when Dobbs was heard in December 2021, “I’m not sure how your answer makes any sense. Griswold, Lawrence, Obergefell—they all rely on substantive due process. You’re saying there is no substantive due process in the Constitution, so they’re just as wrong according to your theory.” And she added: “I just think you’re dissimilating when you say that any ruling here wouldn’t have an effect on those.”
But perhaps most enraging and difficult to stomach in Alito’s 98-page screed is its profound contempt for women. Here are a few choice examples among the many.
Alito elevates 17th century judge and legal scholar Sir Mathew Hale as his source for a historical understanding of abortion. Hale was a man of his time. He endorsed capital punishment for children aged 14 and over. He presided over the most famous English witchcraft trial, where he sentenced two women to death. Hale’s writing on witchcraft influenced the 1692-1693 Salem witch trials in the English colony of Massachusetts, which resulted in the execution of 19 people. Hale also believed that a husband could never commit marital rape, because the woman had, upon marriage, become one body with the body of her husband, and could not retract that consent. The impact of his views was long-lasting: a man raping his wife was not considered a crime in England and Wales until 1991. And this is where our highest Court finds support for its opinion on women’s reproduction?
Reviewing the evidence presented to the Court, Alito takes the time to list in great detail the arguments of those who believe that forced pregnancy and delivery are fine―just fine! ―because of “modern developments.” These include arguments that “attitudes about the pregnancy of unmarried women have changed drastically; […] federal and state laws […] ban discrimination on the basis of pregnancy [but have hardly stopped the practice]; […] leave for pregnancy and childbirth is now guaranteed by law in many cases [even though this leave is largely unpaid]; the costs of medical care associated with pregnancy are covered by insurance or government assistance [all who’ve had to pay thousands of dollars in deductibles and co-pays for childbirth let out a collective scream right here!]; […] States have increasingly adopted ‘safe haven laws’ […] to allow women to drop off babies anonymously [Justice Coney Barrett’s preferred escape hatch for unwanted motherhood]; and the fact that […] a woman who puts up her newborn for adoption today has little reason to fear that the baby will not find a suitable home [Alito obviously has not studied the US foster care system].” In discussing adoption, Alito goes so far as to footnote a statement on the nonexistent “domestic supply of infants” in the US. Is that what women are—suppliers of infants?
In the end, he concludes that the Court has no authority to consider these arguments, but he suggests they might inform state legislators, based on the right-wing catalogue of reasons to restrict abortion, including: “respect for and preservation of prenatal life at all stages of development [note the ALL stages],” “the protection of maternal health and safety [which the 2016 Supreme Court decision in Whole Woman’s Health found was mostly used as a pretext to burden abortion providers and clinics with costly and unnecessary rules],” “the elimination of particularly gruesome or barbaric medical procedures” [i.e., the safest surgical procedures later in pregnancy]; “the preservation of the integrity of the medical profession,” [anti-abortion campaigners claim that abortion demeans the medical profession, something ACOG (the American College of Obstetrician-Gynecologists) disputed vigorouslyin its brief to the Court]; “the mitigation of fetal pain,” [no medical evidence exists on fetal pain], and “the prevention of discrimination on the basis of race, sex or disability.” This last one is particularly egregious. Anti-abortion campaigners portray abortion as Black genocide, and Alito even claims in a footnote that abortion is motivated by “a desire to suppress the size of the African-American population,” a highly insulting characterization of the decisions made by Black women, especially given the lack of affordable, accessible, and respectful reproductive healthcare in the US.
Alito's reasons to regulate abortion include nothing about ensuring access to abortion by telemedicine or with pills; ensuring minors can access abortion without a parent being notified; guaranteeing access to abortion in the third trimester; or ensuring medical personnel can propose and use the abortion method that is most appropriate to safeguard the pregnant person’s health. Nothing about States being actually supportive of pregnant persons.
Alito also dispatches the argument that women in the United States rely on the right to abortion to plan and organize their lives, by mischaracterizing the reflections of the Court’s majority in Casey: while the justices in Casey noted that "legal reliance" in the commercial sense of planning long term for an investment isn’t quite appropriate as an analogy for abortion, they did state 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. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Alito tosses that aside: “abortion is unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”
We have seen how "sudden restoration of state authority" has gone on in Texas, where since September 2021, the very same Court has allowed a 6-week ban to take hold. We can only imagine how it will go when trigger laws to ban or severely restrict abortion go into immediate effect in 22 states across the US. And it will get worse. Far from calming the waters as suggested by Alito, Dobbs is rousing extremists. Republican Senator Mitch McConnell has acknowledged a nationwide legislative abortion ban is the next step in this crusade. Louisiana is now considering a bill to classify abortion as homicide - a bill that would define intra-uterine devices (IUDs) and contraceptive pills as abortion. Nineteen states have already outlawed telemedicine to prescribe abortion pills. Others are considering making it illegal for pregnant persons to travel out of state to obtain an abortion. No one will be safe, but especially not Black and brown, LGBTQ, poor, immigrant or undocumented persons. Maternal mortality and injury in Black women in the US, already outrageously high, will only increase.
The federal Women’s Health Protection Act, which could codify Roe and stop this unfolding disaster, failed 49-51 in the US Senate last week. Republican Senators who have claimed to be concerned about reproductive rights, such as Susan Collins (Maine) or Lisa Murkowsky (Alaska), voted against it, as did West Virginia Democratic Senator Joe Manchin.
Egregiously wrong and exceptionally weak indeed.
In feminist rage and solidarity,
FG
If you want to support organizations already living in and preparing for the post-Roe world, consider these:
Until the decision in Dobbs is out at the end of June, groups helping women in the states that will ban or severely curtail abortion once it’s out, can still operate. Please consider an immediate donation to the Lilith Fund in Texas Yellowhammer Fund in Alabama, or ARC-Southeast (which operates across the region),or you can give to a group of Texas funds with one click through Act Blue.
In the medium to long term, the focus will shift to abortion funds in states where it will remain legal to help someone obtain an abortion, and especially states closest to those that will ban it. I’m thinking of Colorado, Kansas, Illinois, New Mexico in particular.
We also need to fund legal teams to defend women and health personnel who are and will be accused of abortion:
National Advocates for Pregnant Women
ACLU Reproductive Freedom Project
And finally, please support the group Plan C, which is getting info out across the US about abortion pills and how to obtain and use them.
A luta continua!