Introduction: A Nation on the Brink
Over the past few weeks, the country has seemed poised on a steep precipice and about to step off. The Supreme Court has seldom taken away a right once granted. But now, after 50 years, based on Justice Alito’s leaked draft Dobbs vs. Jackson Women’s Health Organization opinion, it seems likely Roe v. Wade will soon be history. And, if and when that happens, some 26 states, including mine, have trigger laws ready to declare abortion illegal within their borders. Perspectives vary. For some Americans, abortion has been a national sin, murder, slaughter of innocents. Others eagerly seize on the issue for political advantage. Count me in the group worried about erosion of women’s freedom, autonomy, and agency if such a fundamental and very personal decision is taken out of their/our hands.
Personal Perspective: A Staunch Defender of Women’s Autonomy
In high school, I wrote my senior paper on Chief Justice John Marshall and Supreme Court judicial review. So, I have an interest in the process. In my 30s, people kept telling me I ought to be a lawyer. I finally took the LSAT to explore the possibility. Always thought I have a fairly logical mind, so I went in without much prep, just took a few pre-tests. When I didn’t score well, I wondered if the law used a different kind of logic. So perhaps I’m missing something, but reading Alito’s draft, I kept thinking of the old saying about statistics, that you can bend them to “prove” whatever answer you prefer. And, though I never became a lawyer, I recall my mother’s response, when I asked about her continued adherence to the troubled Catholic Church, “I have as much right as the Pope to decide what’s right and wrong.” And I have as much right as a Supreme Court Justice. And I read Alito in the context of my gender’s ongoing marginal status. Despite repeatedly focusing on national “history and traditions,” he fails to acknowledge that, for much of this country’s history, women had no say, because we couldn’t vote (suffrage only achieved 100 years back, by Constitutional amendment in 1920). And in earlier days, some of us were burned as witches, often for reputedly having sex with the devil. Bodily functions and our attitudes to them can get very messy.
Judicial Dynamics: The Tension of Originalism vs. Living Document
Before starting my high school research, I naively assumed the justices made decisions solely on principles of law. Then I learned Marshall and President Jefferson were cousins, in opposing political parties, and loathed each other. And judicial review was about carving out a big role for the previously puny Court as the nation’s final arbiter. Mission accomplished! And so here we are, with Alito writing that the Court, “must exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the due process clause [of the 14th Amendment] be subtly transformed into the policy preferences of the members of this Court.” But we’re human, so the personal always creeps in one way or another. And Alito certainly displays his originalist bias, seeing the Constitution, as amended, not as a living document, subject to reinterpretation as social norms shift, but to be taken as written. That the founding fathers meant exactly what they said/wrote and what they didn’t state explicitly isn’t covered. And since they made no mention of abortion…. But I have to wonder what room/space that judicial philosophy/ideology leaves us to improve, to learn, to grow, to expand and adjust our vision to attain a truly more perfect, inclusive and just union? Think of all the many elements of current reality the founders couldn’t have imagined.
Ordered Liberty: Alito’s Perspective on Constitutional Rights
In his draft, Alito prioritizes “ordered liberty,” which according to Merriam-Webster is “freedom limited by the need for order in society.” M-W adds a note: the concept “was the initial standard for determining what provisions of the Bill of Rights were to be upheld by the states through the due process clause of the 14th Amendment. Today the 14th Amendment is generally seen as encompassing all of the guarantees bearing on fundamental fairness that are included in or that arose from the Bill of Rights rather than a small class of provisions essential to ordered liberty.” Alito does admit that the due process clause guarantees some rights not mentioned in the Constitution, but only if those rights are “deeply rooted in our history and traditions.” He insists abortion never was, that it has consistently been viewed as morally different, even repugnant. He glides over contradictions with English common law: “The fetus has no legal right of its own until it is born alive and separated from its mother. The right to life of the unborn fetus is restricted or limited subject to the right to life of the mother.”
Legal Philosophy: Challenging the Foundations of Roe v. Wade
Even at the extremes, no one would argue that abortion is a best-case scenario, but then neither is 9 to 10 months of unwanted pregnancy. We’ve known that Roe has been vulnerable to challenge, because it anchored in women’s right to privacy, rather than to equal protection under the 14th Amendment’s due process clause. Apparently, in 1973, that was the only way to convince enough Justices to sign on. Not surprising, when you remember that this country has never managed to pass the Equal Rights Amendment, which I worked for with my League of Women Voters chapter back in the 1970s. Roe and the later Casey decision identified a right to privacy, described as freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Alito counters that while individuals may have the right to define, they are not always free to act on those thoughts. He asserts that license to act on such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.”
Roe v. Wade: A Questionable Foundation?
Alito describes Roe as “muddled and wrong” from the beginning, an error by the Court that it’s time to correct. “When one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake…. Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions.” He cites the “infamous” Plessy vs. Ferguson ruling. But then, he seems to apply similar hair-splitting arguments, asserting that State regulation of abortion is “not a sex-based classification.” That “the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny” unless the regulation is a “mere pretext designed to effect an invidious discrimination against members of one sex or the other.” Now really. I am not a lawyer, but I am a woman. And I am not convinced.
Alito’s Call for Correction: Reconsidering Constitutional Decisions
And so here we are. And I hope the anticipated majority opinion will be ringed by resounding dissents from other Justices. And that those will help establish a baseline of counter arguments to make it clear this story is not finished. I recently learned of Justice John Marshall Harlan, lone dissenter in the 7 to 1 Plessy decision (1896), which installed the shameful “separate but equal” doctrine for the next 70 years. The majority in that case held that, although the 14th Amendment established the legal equality of whites and blacks, it did not and could not require the elimination of all “distinctions based upon color.” But Harlan rose above his times and fellow Justices. Known thereafter as “the Great Dissenter,” he wrote that, “In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.” He referred to black citizens, but we can extrapolate to women as full citizens.
Hope Amidst Uncertainty: Shifting Public Opinion
Harlan also correctly predicted that Plessy would eventually become as infamous as the Dred Scott decision (1857), in which the Court ruled that black Americans could not be citizens under the U.S. Constitution, and that its legal protections and privileges could never apply to them, and so they could continue to be enslaved. I envision a future in which the current case will be recognized as another Court error.
Looking Ahead: A Potential Turning Point
And I do find reason for hope. Attitudes among younger citizens have been shifting, as shown by a recent Pew Research Center survey (Hannah Hartig. Wide partisan gaps in abortion attitudes, but opinions in both parties are complicated. May 6, 2022). Some 74% of Americans under 30 now say abortion should be legal in all or most cases (up from 67% in 2021). This includes nearly half (47%) of Republicans under 30. Those numbers suggest that, even as it’s happening, the move to overturn Roe may already be out of step with American hearts and minds. I think of the Abolitionist and Women’s Suffrage movements, struggling for years in the wilderness. And I hope this too will be another narrative that circles back for the Court and lawmakers to revisit. Alito claims the Court and the rule of law should be above the influence of public opinion. But, as with Plessy, historically and traditionally they seldom have been.