A crucial part of Justice Samuel A. Alito Jr.’s draft majority opinion dismantling the Supreme Court’s 1973 Roe v. Wade decision came at the back end, with a 31-page appendix detailing myriad state abortion bans in effect at the time the court ruled, including some on the books since the early 19th century.
The point was that abortion was widely illegal in the 1860s when the 14th Amendment was adopted. Therefore, Justice Alito said, it couldn’t have been one of the unenumerated but implicit rights that the 1973 Supreme Court insisted were lurking in the penumbras of the Constitution.
That means Roe v. Wade was “wrong from the start,” he wrote, and must be erased from the court’s legal memory despite serving as precedent for nearly 50 years.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one which the defenders of Roe and Casey now chiefly rely upon — the Due Process Clause of the Fourteenth Amendment,” he wrote.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Alito said in the draft, which was dated February and leaked to Politico.
The opinion has detonated at the heart of American politics.
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Pro-life advocates marvel that decades of strategizing, voting and praying may have finally delivered victory.
Abortion rights defenders, meanwhile, fear a dark age of civil liberties will befall the nation if Roe disappears from the lawbooks.
When it was decided, Roe v. Wade swept aside abortion bans on the books in most states. In a 7-2 decision, the Roe majority found in the Constitution, and in developing legal theories about privacy, an unspoken but absolute right to abortion for the first trimester of pregnancy and nearly unfettered for the second trimester.
The Supreme Court revisited abortion in Planned Parenthood v. Casey. Its 1992 decision reaffirmed Roe as precedent while rewriting the legal framework. Gone was the trimester formula, and states were given more leeway to impose restrictions as long as they didn’t place an “undue burden” on the ultimate ability to obtain an abortion.
In his 98-page draft, Justice Alito said Roe was “egregiously wrong from the start” and Casey did little to fix its problems either legally or in the sphere of public policy.
He dove into history books to challenge the notion that the word “liberty” in the due process clause of the 14th Amendment envisioned a privacy right that encompasses abortion.
He found that at the time the amendment cleared Congress and was ratified by the states, most of those states had criminalized the procedure at all stages of pregnancy. He went back further to challenge the idea that common law, inherited from the Colonies’ English fathers, countenanced legal abortion.
“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None,” the justice wrote.
Casey fares no better in Justice Alito’s draft. He said the chief reasoning for the 1992 decision was that Roe must be upheld, even if it was wrong, because it was precedent.
That gets it backward, Justice Alito wrote. If Roe was wrong, it had to go — notwithstanding five decades of reliance.
Legal scholars have challenged Justice Alito’s reading of the 14th Amendment by suggesting that other liberty interests such as interracial marriage, LBGTQ issues and birth control access could be in jeopardy.
“The logic and language of the draft threaten other rights as well. Justice Alito emphasizes that the Constitution makes no reference to abortion, and states that the due process clause protects only those rights not mentioned that are ‘deeply rooted in our nation’s history and tradition,’” said Louise Melling, deputy legal director at the American Civil Liberties Union.
“While he also says that abortion is unique, that reasoning, if followed through upon, could threaten the right to birth control, to engage in intimate sexual relations of one’s choice, and to marry. The Constitution has survived only because it has evolved,” she said.
The popular press has been more vicious.
The New Yorker declared Justice Alito’s draft the denouement of anti-majoritarianism. Slate.com explained the lack of abortion rights in the founding document by arguing that the Constitution, written by White men, “does not concern itself with the rights of women” at all.
“The omission of abortion, then, says less about the issue itself than about who the Founding Fathers considered people,” Slate concluded.
Yet another attack gaining steam comes from criticism that the draft opinion cites the views of a 17th-century English legal expert who “supported marital rape and had women executed.”
That would be Matthew Hale, one of several legal minds from before the U.S. was a country that Justice Alito looked to for proof that abortion was a crime under English common law. He used those voices to counter the Roe court’s insistence that abortion, at least in the earlier stages of pregnancy, was not seen as a crime in Colonial times.
What few critics have done in the wake of the draft’s leak is to defend the legal reasoning of Roe. Instead, they lament the potential end of the world that they say Roe ushered into law, with easier access to abortion coinciding with women’s gains socially and economically.
Justice Alito’s reformulation of the importance of precedent has also ignited a fierce legal debate.
Jared Carter, a professor at Vermont Law School, told The Washington Times that lawyers could use Justice Alito’s reasoning to attack the 2015 decision that created a national right to same-sex marriage or even the 1967 decision striking down bans on interracial marriage.
“There are significant risks that this decision would be used to perhaps try to reduce or eliminate cases that are grounded in the liberty interests and privacy,” Mr. Carter said.
Carolyn Shapiro, a professor at Chicago-Kent College of Law, said the right to use contraception could also be attacked under Justice Alito’s reasoning. The same thing could be said for fertility treatments, which weren’t around at the time of the 14th Amendment, she said.
“It opens the door to a variety of really extremely disruptive changes in law,” Ms. Shapiro said.
Carrie Severino, chief counsel for the Judicial Crisis Network and a former clerk to Justice Clarence Thomas, called those arguments “fearmongering.”
“It’s just really egregious,” she said. “The court was very clear that this opinion does not impact those other rights.”
Justice Alito, anticipating the lines of attack, wrote in the draft that abortion is unique because a “life or potential life,” as Casey put it, is involved.
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” the draft argues.
His critics doubt that sort of guardrail will prevail.
Texas Gov. Greg Abbott, a Republican, has suggested revisiting a 1982 Supreme Court precedent that says illegal immigrant children have a constitutional right to free public education.
Justice Alito’s draft was labeled a majority opinion, which suggests that the court at some point voted in favor of the position of overturning Roe.
The specific challenge before the justices is Mississippi’s law prohibiting most abortions after the 15th week of pregnancy.
Chief Justice John G. Roberts Jr. said in a statement the day after the draft leaked that it was authentic, but he stressed that it was not a final ruling.
An official ruling in the case is expected this summer, and an investigation has been launched to identify who from the high court leaked the draft opinion to the press.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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