Alejandro Alvarez/Sipa USA via AP Images
A chalk message left by an abortion rights supporter is seen near the Supreme Court building in Washington, June 13, 2022.
In Roe v. Wade, the Supreme Court identified the right to choose as an aspect of the general constitutional right to privacy. Planned Parenthood v. Casey, which preserved Roe’s “essential holding,” shifted abortion’s constitutional foundations to liberty, declaring abortion rights components of 14th Amendment liberty guarantees.
Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization—which could become the Court’s ruling—encompasses privacy and liberty in its sweep, while insisting it only covers abortion rights, and not women’s 14th Amendment sex equality rights, which Justice Ruth Bader Ginsburg’s litigation helped to get the Court to recognize. Neither Roe nor Casey squarely based its ruling on the 14th Amendment’s equal protection clause, the draft opinion emphasizes. Moreover, the opinion adds that pregnancy and abortion implicate women’s sex-based reproductive differences—differences, that is, from men. These differences, figured as expressions of nature or biology, mean women and men aren’t similarly situated where pregnancy is concerned, making it something other than illicit sex discrimination when the state regulates or blocks women’s efforts to end it.
Presumably, the draft Dobbs opinion’s logic runs both ways here: Just as constitutional sex equality promises don’t save Roe, Casey, or the abortion right, neither does the draft opinion’s burial of them imperil the broad constitutional sex equality guarantees the Court has for more than a half century said the 14th Amendment demands.
If only that were the end of it.
A closer look at Alito’s draft opinion finds that it pours a foundation for limiting, rolling back, or perhaps even dismantling the Supreme Court’s sex equality jurisprudence.
The opinion’s position that neither Roe nor Casey officially anchored its rationale protecting abortion to the 14th Amendment’s equal protection rules is technically right, but also misdirecting. As Alito’s draft acknowledges elsewhere, Casey emphasized that women’s abortion rights were linked to—and furthered—women’s social and economic equality to men. Casey even held that Pennsylvania’s requirement that married pregnant women notify husbands before having an abortion was unconstitutional. This conclusion reflected Casey’s apprehension of the gendered violence that regularly marks women’s intimate lives, whether at the hands of their husbands or intimate partners.
Although Casey struck the spousal notification rule down as a violation of constitutional liberty, its vision was informed by principles of sex equality. Overturning Casey, Alito’s draft opinion in Dobbs implicitly configures spousal notification provisions like the one Casey struck down as presumptively consistent with its perspective on what constitutional liberty involves. At least in that respect, Alito’s draft opinion resubjects women to the possibilities of men’s domestic rule.
Later on, discussing how much respect the Court’s abortion rights precedents deserve, the opinion reinforces its conclusion that a “proper” understanding of the Constitution requires abortion’s legality to be determined not by the Court, but by ordinary political processes. Ostensibly reassuring supporters of abortion rights, who believe judicially protecting them is necessary if women’s liberty and equality are to receive their due within the national constitutional order, Alito’s opinion reassures that there’s no reason to fear making abortion a great political question again. After all, the opinion says, women can politically take care of themselves and protect their interests where abortion is involved.
Women’s rights supporters must gird themselves for the prospect that their political defenses of abortion rights may be redeployed against women’s constitutional rights in a wide sense.
Women, who the draft opinion notes are on both sides of the abortion controversy, constitute a political majority in the United States, including Mississippi, from whence Dobbs came. They’re thus capable of exercising political power to defend whatever rights they wish to defend. The draft opinion prefigures a political mud-wrestling match, telling abortion rights supporters to get in the ring with their sisters on the other side and fight.
This insistence that women are a not-powerless political majority is constitutionally significant in ways other than abortion. Underwriting, though not simply determining, the Court’s sex equality jurisprudence is an idea that traces to an important 1938 case called U.S. v. Carolene Products Co. and its famous “footnote 4,” known as “the most famous footnote in constitutional law.” Against the backdrop of footnote 4, the Court’s sex equality case law resonates with the idea that women are “a discrete and insular minority” entitled to special judicial solicitude as a matter of constitutional practice.
One common view is that to be a “discrete and insular minority” a group must lack meaningful political power, which helps justify the extraordinary judicial protections this legal categorization supplies. Evidently with this configuration at least partly in mind, the draft Dobbs opinion says women aren’t a minority and don’t lack political power.
This is a potential constitutional land mine. Without additional conceptual footwork, the same justices who joined the draft opinion could easily point to this thought as a predicate for eliminating the Court’s constitutional sex equality doctrine, root and branch.
Important seeds for this position were planted more than a quarter-century ago, when Justice Antonin Scalia offered a cranky, but not seemingly significant or fearsome, lone dissent in United States v. Virginia (1996), a case that declared the Virginia Military Institute’s males-only admissions policy unconstitutional on sex equality grounds. The majority opinion by Justice Ginsburg paved the way for a new announcement that sex-based classifications are just like race-based ones in being subjected to the highest form of constitutional skepticism available, strict scrutiny.
Scalia’s dissent bemoaned how Ginsburg’s opinion reconfigured the scales of constitutional justice. The dissent ventured that, should the Court reconsider how it analyzes sex-based legal classifications, it shouldn’t expand its sex equality doctrine’s reach, as the majority wished, but shrink it, requiring that sex discriminatory laws only satisfy a minimum rationality review.
Scalia’s dissent gave two main justifications for this revolutionary conservatism. One was that women weren’t a discrete and insular political minority. As a majority of the electorate, Scalia’s dissent reasoned, they were perfectly capable of generating pro-women political results, and it then showed the legislative receipts to prove it. Alito’s draft Dobbs opinion apes the crucial elements—women’s political majority and their power—found in Scalia’s VMI dissent. Alito’s opinion also retraces the second reason Scalia’s dissent gave for retiring the Court’s sex equality doctrine and returning women’s equality rights to the political realm: that it better comported with the Court’s historical approach to sex-based legislative classifications than the Court’s modern sex equality case law did. For more than a century after the 14th Amendment’s enactment in 1868, the equal protection clause didn’t require judicial skepticism toward sex-based legal rules. Of course, that changed, thanks to Ginsburg’s litigation successes and the Court opinions providing them.
These details expose the straight line that can be drawn from Scalia’s VMI dissent to Alito’s draft in Dobbs, which proudly burnishes conservative constitutional originalist credentials, like Scalia’s. A conservative originalist view of the 14th Amendment’s equality promises readily notes that those promises were widely thought limited to race at and around the time of the amendment’s enactment. Once the musings of a lone dissenter, conservative originalist thoughts have found expression in a draft opinion written for a majority of the Court. Now we will see how far this new majority will go to translate those ideas into constitutional equality practice.
Unlikely as it seems, it’s possible that at least one of the justices who joined Alito’s draft Dobbs opinion could have peeled away. But even if Justice Brett Kavanaugh or someone else breaks ranks—joining Chief Justice Roberts to uphold Mississippi’s 15-week abortion ban without overruling Roe, Casey, and the constitutional abortion right—it will likely remain the case that a majority of the Court is on record as subscribing to an opinion whose reasoning contains the seeds that, by their own terms, could unravel women’s constitutional sex equality rights and their protections. Once those protections are gone, it would be constitutionally permissible to recodify many, if not all, of the kinds of legal rules that historically made women unequal to men in private and public life.
Seen in these wider terms, the draft opinion sets a constitutional trap. Women’s political struggles against the ruling—either to preserve or expand abortion rights, or to minimize their elimination—might soon be invoked to show just how politically powerful women are. Women’s rights supporters, accordingly, must gird themselves for the prospect that their political defenses of abortion rights, including those associated with vibrant visions of reproductive justice, may be redeployed against women’s constitutional rights in a wide sense. The very grounds for political engagement may soon show themselves to rest atop moving tectonic constitutional plates.
From a pro-choice view, it’s easy—and understandable—to react to this situation with political rage joined by despair. Alito’s draft Dobbs opinion declares its indifference to whether it’s synced or out of step with deeply entrenched and broadly shared American political values of women’s liberty and the equality of the sexes. If the Court won’t hold the line on women’s constitutionally protected liberty and might not on women’s constitutionally protected equality, women’s rights supporters will have to do the work of engaging the political fight to resecure rights long thought durably protected by the courts.
The longer-term worry isn’t so much whether majorities can be mobilized to ensure that the arc of justice remains pointing in sex equality’s direction. It’s more about the dismantling of established constitutional rights and the political strife the opinion would unleash, sure to inflame political intensities at a crisis moment in our nation’s history, when political balkanization and enmity are easy, and political collaboration, compromise, and friendship are hard.
It’s been said the country gets the Supreme Court that it deserves. Here’s hoping that means the final ruling in the case won’t be the Alito draft opinion in Dobbs. We’ll know soon.
