Josie Lepe/AP Photo
Mitzi Rivas, left, hugs her daughter Maya Iribarren during an abortion rights protest at City Hall in San Francisco, June 24, 2022.
The Fact of a Doorframe
means there is something to hold
onto with both hands
while slowly thrusting my forehead against the wood
and taking it away
one of the oldest motions of suffering
—Adrienne Rich, “The Fact of a Doorframe”
The bit that really got me was a little ways into the dissent of the Supreme Court opinion overturning Roe v. Wade. “Even in the face of public opposition,” Democratic-appointed Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor write, “we uphold the right of individuals—including women—to make their own choices and chart their own future.”
It’s all in the em dash: the almost-but-not-quite parenthetical invocation of humanity—not just the humanity of all those with the capacity to become pregnant, but all those partnered with or parenting or caring about someone who can get pregnant. I felt a little befriended, in the way you can sometimes be deeply sad and cheered by the company of others who are also deeply sad, by the words of these marginalized legal eminences. I imagined them as a mini Justice League, like the American rebels from Hamilton, outgunned and outmanned by the extremist current majority but with a half-tank of guerrilla fighting spirit left.
But it wasn’t their day, was it? A five-person majority, four male-identified and one female-identified, all raised Catholic (although Justice Gorsuch now attends Episcopalian services), achieved the long-standing goal of an energized and legally oriented far-conservative minority by invalidating the Court’s epochal opinions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). A sixth, also raised Catholic, would have nominally maintained Roe and Casey but weakened them perhaps to the point of irrelevancy.
Coming on the heels of the leaked draft of Justice Samuel Alito’s opinion in the case, as well as decisions restricting the rights of immigrants in detention and eviscerating the ability of states to regulate access to lethal weapons, nothing about the holding in Dobbs v. Jackson Women’s Health Organization was a great surprise. When I got the first notices about it, I didn’t lose my breath thinking about my late mother, who wrote the first draft of the law that undid the criminal abortion statute in New York state (included in Justice Alito’s misleading appendix to the Dobbs opinion), and who was probably driven to her final health crisis by Hillary Clinton’s loss to Donald Trump. But it was still a gut-punch, a moment in what has often felt since the morning after my mother and I accepted the reality of President Trump like life in a gender hierarchy state, in which the female, queer, and nonbinary majority—and its friends—gets some attention on TV and Twitter but no meaningful political power.
Justice Alito’s majority opinion is ten pages longer than the purloined or deliberately leaked draft Politico circulated in early May, but that mostly consists of responses to the dissents and other meaningless edits. The general impact of reading its 108 pages, plus 31 pages of concurrences by Justices Thomas and Kavanaugh and partial concurrence by Chief Justice Roberts, was like the impact of contemplating the nearly limitless resources available to movements that oppose gender, sexual, and reproductive justice while keeping exhaustedly at my corner of the work, which consists of writing and cheerleading my local Planned Parenthood chapter. It feels like Alito and company could do this all day: elongating footnotes, listing old statutes, deriding precedents. The friends of Roe, as much as they continue to do their parts, are winded and on the ropes.
ANYONE WHO BET THAT FUROR over the leak would compel Justice Alito to moderate at least his tone lost money. A particularly egregious case lies in Alito’s repeated reliance in the final opinion, as in the draft, on the work of Sir Matthew Hale, an English judge and treatise writer whose diminishing view of female victims of assault, and belief that there was no such crime as marital rape, were influential for two centuries of U.S. law. He died before the U.S. Constitution was written, indeed before the United States existed.
Justice Alito cites Hale as an authority on English common law, and therefore a critically important source on the “history and tradition” central to our law today. According to Alito’s aggressively antediluvian mode of evaluating “unenumerated rights” like the right to access legal abortion early in a pregnancy, if Hale and a short list of other superannuated authorities didn’t favor the rights in question, then they don’t count.
While progressives probably won’t fall for the notion that our current-day law should follow what some English guys said early in the 18th century, I fear that they will fall for one of Alito’s other central arguments, that the Supreme Court in Roe usurped the authority of state legislatures and therefore was un- or even anti-democratic. Justice Alito argues that Roe v. Wade was an interruption in an otherwise unbroken history, from the ratification of the Constitution to 1973, in which individual states had the power to regulate abortion. He claims, inaccurately (citing the late Justice Ruth Bader Ginsburg, who was wise in many things but incorrect on this one), that “Roe abruptly ended [a] political process” through which the states were sorting out their policies on abortion peaceably and should therefore have been left alone.
Everything that blocked people from talking about sex and pregnancy kept most legislators from promoting legal abortion as a positive good.
Under pressure from a robust feminist grassroots movement, and from a variety of affiliated liberalisms and radicalisms, state policy on abortion did change in the late 1960s and early 1970s. In fact, on the eve of the Roe decision, 17 states and Washington, D.C., had reformed their laws. Four states had decriminalized abortion to a significant degree.
Briefly, the democratic system seemed to work. Public opinion turned against the old, highly restrictive laws. New York’s law, implemented in July 1970, allowed abortions through the 24th week of a pregnancy and opened access to people no matter the state or country of their residence. Washington state approved a less ambitious program by referendum in November 1970, but it still represented a victory for opponents of the old laws.
However, after the Washington referendum, the trend stopped. Public opinion continued to change, but state laws did not.
In response to these reforms, especially the New York law, the Catholic hierarchy and a smaller number of Protestant and Orthodox Jewish abortion opponents built political machinery that kept state legislatures from reflecting people’s changing views. It wasn’t that hard: Decriminalization advocates were exhausted after years of fighting sexism and the stigma surrounding abortion. Abortion opponents raised funds and organized activists from Sunday pulpits. Everything that blocked people from talking about sex and pregnancy kept most legislators from promoting legal abortion as a positive good.
In New York, the 1970 law faced immediate threats. In 1972, only a gubernatorial veto saved it. Anti-abortion activists were on the verge of a third repeal campaign in 1973 when the U.S. Supreme Court ruled. Against this background, the Supreme Court in Roe v. Wade, which Justice Alito accuses of overturning the democratic will of state legislatures, may be seen instead as an agent of democracy. The state legislative system was not functioning smoothly; it was not exemplifying Norman Rockwellian representative democracy but increasingly doing the will of an intransigent minority. It was appropriate for the federal courts to act, to defend what justices of that earlier era understood as fundamental rights.
JUSTICE ALITO’S SECOND MAJOR ARGUMENT, long an article of faith in conservative legal circles and often winkingly suggested by liberals as well, is that Roe v. Wade was badly argued. This argument’s main feature is that the right to privacy that, according to Roe, encompasses the right to access legal abortion is not really a constitutional right. As Alito puts it in Dobbs, Justice Blackmun’s majority in Roe “was remarkably loose in its treatment of the constitutional text.” By this flaw alone, Alito suggests, 50 years of precedent should fall.
Progressives should not buy this argument, either. Privacy is an old legal and constitutional idea, with roots in common law. From Louis Brandeis’s assertion of “the right to be let alone” in 1928, to the Supreme Court’s ruling on married people’s right to use contraception in their homes (Griswold v. Connecticut [1965]) and the right of unmarried people to contracept (Eisenstadt v. Baird [1972]), a stream of writing and cases in the 20th century laid the foundation for Roe.
The privacy right in Roe was rooted in several different constitutional provisions. The most important, however, was the “due process” clause of the 14th Amendment. It may be counterintuitive, and might even seem arbitrary or made-up, for the right to access safe and legal abortion to be located in this part of the Constitution, which was originally drafted with the intention of ensuring that formerly enslaved Black people were treated fairly by agents of the government.
This way of thinking is off base for two reasons. First, as law professors Peggy Cooper Davis and Michelle Goodwin have both recently pointed out, it’s no coincidence that a constitutional effort to protect formerly enslaved people from governmental abuse would eventually be interpreted as a way to ensure a measure of bodily, familial, and reproductive freedom. The kinds of liberty at issue in Roe, now imperiled by the majority in Dobbs, were at the heart of the depredations of slavery in the United States, and at the heart of the abolitionist response. Second, the identification of abortion and other sexual privacy rights with “due process” is not arbitrary. It is historically contingent, meaning that it happened over many decades and through repeated twists and turns in political and social history and in the development of constitutional doctrine. It’s not bad, or wrong. It’s just history.
We didn’t lose because we made bad constitutional arguments, back in the 1970s or at any point thereafter.
If we are not satisfied with “due process” as a home for the right to be free from governmental intrusion into our intimate choices, then there is another option. That option is the other frequently invoked clause from Section 1 of the 14th Amendment, the “equal protection” clause. Even more than “due process,” this clause speaks to the concern of its authors for the freedom and fair treatment of people who had recently been enslaved. It has been extended to other groups experiencing systematic subordination—including, to a degree, to women.
If Justice Alito doesn’t like the way Roe nestled the abortion right in a mess of constitutional provisions, what’s wrong with equal protection as an alternative? This is consistent with a whole line of cases Justice Ginsburg won before the Supreme Court. The brilliant law professors Serena Mayeri, Melissa Murray, and Reva Siegel submitted a friend-of-the-court brief in the Dobbs case that laid out clearly the argument for abortion as a right of equal protection.
Justice Alito can’t caricature “equal protection” as he does Justice Blackmun’s “due process” and other arguments. The equal protection argument is strong, especially if you believe there is such a thing as systematic, structural discrimination on the basis of sex and gender. Alito’s response is to change the subject as quickly as possible, claiming the option is “squarely foreclosed” by precedent, even as the majority for which he speaks is overturning one of the most significant precedents in modern times. He cites a thin stream of cases, only one of which concerns abortion (Bray v. Alexandria Women’s Health Clinic, which ruled that the anti-abortion group Operation Rescue could not be charged with a conspiracy for blocking clinics, because preventing abortion was not depriving people of equal protection of the laws).
The take-home point: We didn’t lose because we made bad constitutional arguments, back in the 1970s or at any point thereafter. Don’t be fooled by that chicanery.
THE LAST HUGE QUESTION raised and answered by the Dobbs opinion, and of obvious interest to progressives, concerns which rights might fall next. Justice Alito’s majority opinion offers a bit of chicanery on this, too. He claims that the “decision concerns the constitutional right to abortion and no other right.” Fans of legal birth control, interracial coupling, and same-sex intimacy and marriage should keep their powder dry. He comes close to accusing his colleagues in the Justice League minority of bad faith for suggesting that the big precedents on these other issues will be the next to fall.
The justice doth protest too much, thus demonstrating an ability simultaneously to make a frontal assault on our rights and to gaslight us by claiming that something we know is happening is all in our heads. The constitutional argument Justice Alito offers throughout his opinion, often by deriding the one on which our modern sexual jurisprudence is based, makes it clear where this train is headed. If Roe must fall because its constitutional foundations were inadequate, its reasoning faulty, and its substance not part of our history and traditions as judged against the work of Sir Matthew Hale, then federal constitutional protection for birth control and same-sex marriage, and against the proscription of sodomy, must fall as well. Protection for interracial marriage is vulnerable too; in its big case on the issue, Loving v. Virginia, the Supreme Court relied on both the due process and equal protection clauses, and so revisiting it might come a little later. But interracial marriage is certainly not a constitutional right our 18th-century Founders or English antecedents respected, so Loving could certainly fall as well. Next stop, Republic of Gilead.
Luckily, Justice Clarence Thomas wrote a concurring opinion that eschews gaslighting and embraces honesty. He assents to Justice Alito’s claim that the Dobbs opinion itself concerns only abortion, but then asks the Court to take up direct challenges to all of its sexual privacy rulings based on due process, including Griswold on birth control, Lawrence on sodomy, and Obergefell on marriage equality. (Thomas doesn’t mention interracial marriage. I wonder why.) He favors “jettisoning the doctrine entirely,” and most likely jettisoning entirely the sexual privacy rights that the federal courts started protecting in the mid-20th century.
That’s where we are.
And yet. Even in the face of opposition from a Supreme Court majority engineered by big money and anti-democratic maneuvering, we must uphold the right of individuals—including women, Black, queer, and nonbinary people, and everyone whose personal rights are in peril—to make their own choices and chart their own future. To quote the great political philosopher Lin-Manuel Miranda (Hamilton, again): “We are out-gunned / Out-manned / Out-numbered, out-planned / We gotta make an all-out stand.”
