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Demonstrators protest outside the U.S. Supreme Court, May 3, 2022, in Washington.
Supreme Court Justice Alito’s recently leaked draft opinion overruling Roe v. Wade is remarkable for many reasons, not least its treatment of precedent. Justice Amy Coney Barrett has observed that, among the reasons why courts follow their own precedents, “the protection of reliance interests is paramount.” People make plans based on the law as they understand it, and abrupt changes in the law can upend their lives. Alito’s treatment of this planning issue, and of the extent to which women have made plans based on their ability to control their fertility, is sloppy and cavalier. It is part of a broader tendency to make women invisible in discussions of abortion and contraception.
When the Court reaffirmed Roe in Planned Parenthood v. Casey (1992), the plurality opinion cited reliance. “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 … 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.”
Chief Justice William Rehnquist dissented. He offered this unpersuasive answer: “Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.” This sentence is nearly unintelligible. Is he saying that women’s determination to advance is never frustrated by an unwanted pregnancy? That no college or professional school student’s ambitions will be stymied if she has an unwanted baby?
Alito’s draft opinion is even worse on this point. He quotes that same reliance passage from Casey, and then responds that “this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’” He claims that “it is hard for anyone—and in particular, for a court—to assess” the “effect of the abortion right on society and in particular on the lives of women.” How, he innocently wonders, can a court possibly know whether women’s lives will be disrupted by an unintended, inescapable pregnancy?
Of course, the claim that such pregnancies can hijack women’s lives is not a “generalized assertion.” It is a massively obvious fact. And Alito is not the only justice who is in denial. At oral argument, Justice Barrett asked a rhetorical question: To the extent that “the consequences of parenting and the obligations of motherhood that flow from pregnancy” burden women, “Why don’t the safe-haven laws take care of that problem?”
This is a brutally silly question. Set aside the fact that pregnancy is physically grueling, more so as it progresses, often leaving permanent damage. Adoption is hard. Many women find it difficult to give up for adoption an infant born of their bodies, and when they do the experience is often traumatizing. One study found that 9 out of 10 women who were denied abortions ended up keeping the baby. (There would be even more pressure to do that if abortion were outlawed: The foster care system would be overwhelmed by more than 800,000 infants each year.) That’s fine only if you believe that women aren’t entitled to decide for themselves what to do with their lives.
Abortion restrictions are totalitarian. They take over and redirect women’s lives. This was part of the wrong of slavery before the Civil War. Women were forced to bear children; their bodies and reproductive powers were mere instruments, subject to the command of others; their lives were seized and put to the service of purposes not their own.
American women who think that they get to shape their own destinies, and have made commitments around that assumption, are about to get some very bad news. Alito’s evasion of that fact deserves to be classified with the defenses of racial segregation that denied that such segregation stamps African Americans with a badge of inferiority. That denial, professor Charles Black wrote in 1960, was “the only kind of law that can be warranted outrageous in advance—law based on self-induced blindness, on flagrant contradiction of known fact.”
Alito, quoting the Casey plurality, claims that abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” Precedent, he writes, concerns “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’” But, once more, the very specter of pregnancy can jeopardize financial plans. Think of women who are students and have in some cases borrowed tens of thousands of dollars for the first year of school, who will never finish if they get pregnant.
Women assume that they get to control their own bodies. Their decisions to build their lives around that assumption is, according to Justice Alito, a “novel and intangible form of reliance.” But there is nothing novel about it. People expect to know what their rights are, and it is destructive for courts to yank them away. That doesn’t decide the Roe question, but it does mean that Alito should take responsibility for what he has done to American women.
