Alex Brandon/AP Photo
Demonstrators protest outside the U.S. Supreme Court, May 3, 2022, in Washington.
No one who’s been paying attention should be surprised that the Supreme Court is poised to overturn constitutional protections for women’s right to decide for themselves whether to carry a fetus, and to turn the decision over instead to state politicians. Still, intellectual expectations are one thing and reality is another.
The leaked opinion written by Justice Samuel Alito will endanger the lives of women, many of them Black and brown, who can’t afford to go to other states to seek an abortion and instead will go down the hazardous route of back-alley or self-abortions. In half the country, emergency rooms will fill up with the women who are the Supreme Court’s true victims.
But it gets even worse. This is, to the best of my knowledge, the first time in history that the Supreme Court will have taken away an existing constitutional right. The legal logic of Alito’s opinion threatens all constitutional protections of privacy rights, including Supreme Court precedents on the right to use contraception, and for LGBTQ or interracial couples to marry, and even for consenting adults to have same-sex intercourse.
Alito’s Draft Opinion
The tell comes on page 5 of Alito’s 98-page draft opinion: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision …”
Keep in mind that the text of the Constitution makes no mention of “privacy,” “contraception,” “marriage,” and certainly not “homosexuality.”
Alito disingenuously tries to distinguish abortion from other rights which the Supreme Court has upheld under the 14th Amendment’s protection of liberty. “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” Alito writes, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us [the Mississippi abortion ban] describes as an ‘unborn human being.’”
To make this distinction, he must adopt the Mississippi legislature’s fundamentalist Christian view that an unborn fetus is a “human being.” A few pages later, Alito quotes the Mississippi legislature’s “factual findings” characterizing a fetus as an “unborn child.” He essentially imports the religious views of the Christian right into his opinion.
But even this attempt to distinguish abortion from other “unenumerated rights” that the Supreme Court has previously upheld is hard to square with the legal reasoning in the rest of Alito’s draft opinion. He seems to acknowledge that the due process clause of the 14th Amendment may protect some rights “not mentioned in the Constitution,” but only if they are “deeply rooted in this Nation’s history and tradition … The right to abortion does not fall within this category.”
But neither does the right of same-sex couples to sexual intimacy, upheld by the Court in 2003 in Lawrence v. Texas, or their right to marry, upheld in 2015 in Obergefell v. Hodges. Until quite recently, homosexual relations were outlawed in many states. The first state to recognize gay marriage was Massachusetts, relatively recently in 2004. LGBTQ rights were hardly “deeply rooted in this Nation’s history and tradition.”
So one should take little comfort that these precedents won’t also be overturned by the Supreme Court under Alito’s legal reasoning, despite his assurances later in his draft opinion that nothing in the opinion overturning the Roe precedent “should be understood to cast doubt on precedents that do not concern abortion.” Alito is gaslighting us.
Indeed, on pages 31-32 of his draft opinion, Alito vigorously criticizes prior Supreme Court precedent involving interracial marriage, the right to contraception, the right to engage in private, consensual sexual acts, the right to same-sex marriage, and other unenumerated rights. He states that “[n]one of these rights has any claim to being deeply rooted in history.” Alito harshly criticizes them as “appeals to a broader right to autonomy” and operating “at a high level of generality [which] could license fundamental rights to illicit drug use, prostitution, and the like.”
Alito’s draft opinion is a virtual how-to guide for this reactionary Supreme Court to overturn these precedents on gay rights, interracial marriage, contraception, and other rights not explicitly mentioned in the original Constitution or its amendments.
If a state passes a law to prohibit gay marriage, and the Supreme Court takes the case, how will it justify overturning such law under Alito’s reasoning that unenumerated rights must be “deeply rooted in this Nation’s history and tradition,” when gay rights clearly are not so rooted? Even the right of interracial couples to marry is not so “deeply rooted.”
Alito’s opinion represents the ultimate victory of a vigorous 30-year campaign by conservatives and Republicans to enshrine the theories of originalism and textualism in the Constitution.
Under these theories, the meaning of the Constitution must be interpreted by the exact meaning of the text as originally publicly understood at the time the Constitution was written. There is no room for rights to be interpreted by evolutions in society. Thus, under a strict originalist/textualist interpretation, since the right to privacy or abortion (or interracial or gay marriage) was not generally understood to exist when the Constitution (or even the post–Civil War amendments) were enacted, future Supreme Courts may not find them to be implied by general language like “liberty.”
Who’s to Blame and What Can Be Done?
The blame for overturning Roe and the potential for overturning other privacy rights rests first and foremost on Republicans and reactionary conservatives, who have waged a laser-focused campaign through the Federalist Society and other ideological groups to enshrine originalism/textualism as the only legitimate way to interpret the Constitution. They have trained several generations of young conservative lawyers in this theory, and then done everything in their power to get them appointed to the federal bench and eventually the Supreme Court.
Mitch McConnell has famously said that the best way to change the law is to change the judges. He and his Federalist Society allies have been extraordinarily successful in that effort. Three of the justices who have apparently signed on to overturning Roe (Justices Gorsuch, Kavanaugh, and Barrett) were the product of a deal between McConnell and Donald Trump to turn the selection of judicial nominees over to the Federalist Society.
Simultaneously, liberals and Democrats have been extraordinarily casual, bordering on negligent, in focusing on seeding the judiciary. There has been nothing like the Republicans’ campaign to place hardcore originalists or textualists on the courts.
In 1987, when Democrats, led by Ted Kennedy, rejected the nomination of Robert Bork—one of the nation’s most militant originalist/textualists—to the Supreme Court, his philosophy was a fringe idea. Today, it’s dominant.
In 2008, there were only two originalists on the Court. Today, there are at least six and perhaps more. At Justice Kagan’s confirmation hearing, she proclaimed, “We’re all originalists now.” At newly confirmed Justice Ketanji Brown Jackson’s hearing, when asked to name a justice she admired, she didn’t bother to name Justice Breyer, whom she had clerked for. When asked about her judicial philosophy, she repeated some bromides that added up to originalism/textualism. It’s doubtful that Kagan and Brown fully believe this, but they felt compelled by the current political atmosphere to talk like they do, and exactly zero Democratic senators criticized originalism/textualism.
If Justice Kagan is really an originalist, it will be interesting to see how she defends Roe on legal grounds in her expected dissent, except as a super-precedent.
As I recently wrote, Roe “was based on an earlier case, Griswold v. Connecticut, in which the Court found that the Constitution implied a right to marital privacy that included a right to use contraception (which was then illegal in several states). The 7-2 Court majority found that ‘specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.’”
In Roe v. Wade, the Court found that these “zones of privacy” were broad enough to include a woman’s decision to terminate her pregnancy. That was the right call, based on the Constitution’s implicity and the 14th Amendment’s explicit guarantees of liberty, along with the reasonable viewpoint that constitutional interpretation should evolve with the times. That position can be called a lot of things, but it’s most certainly not originalism/textualism.
Democrats and liberals need to develop and articulate better theories of constitutional interpretation, while training and promoting smart law students who learn these theories, and then apply them when they are appointed to the courts.
But this is a lengthy process. To combat Republicans’ packing of the judiciary with reactionary originalists, Democrats and liberals may need to increase the number of justices on the Supreme Court and/or impose term limits.
In the meantime, we’re stuck with a Supreme Court that, in addition to overturning Roe, will likely be taking away more of Americans’ fundamental constitutional liberties.
