When amending a legal wrong isn't right
Examining Justice Alito's leaked draft overruling Roe v Wade.
On May 2, 2022, Politico leaked a 98-page first draft of the United States Supreme Court decision in Thomas E Dobbs, State Health Officer of the Mississippi Department of Health, et al. v Jackson Women’s Health Organization, et al., overturning Roe v Wade and Planned Parenthood v Casey. These two decisions have secured access to safe abortion care in the United States since 1973. While a final draft is not expected until some time this summer, it appears more likely than not that women’s healthcare in America will be drastically altered.
The tagline - the ratio - of Roe v Wade that was protected in Planned Parenthood v Casey is that states are not entitled to legislate regarding a fetus before it has reached viability, which per Roe v Wade is around the end of the second trimester or to unduly burden womens’ access to abortion services. Justice Alito’s leaked decision is concerning the constitutionality of a law in Mississippi that would prohibit abortion access after 15 weeks. It is more or less a nearly 100-page law review article on the faults of the Roe v Wade decision. The Mississippi law in question is one of many so-called “heartbeat laws” that lawmakers in certain states have been attempting to bring before the Supreme Court to do exactly what they would appear to have now accomplished. One of the notable features of these laws, including the Mississippi law at issue, is that they turn abortion providers into criminals, and deem the process of performing a DNC, the method of abortion required at 15 weeks, to be a barbaric practice that is dangerous to the mother and demeaning to the medical profession. In this case, the court was tasked with deciding whether pre-viability restrictions on abortion are unconstitutional. However, Justice Alito’s decision goes much further.
In Roe v Wade, the Supreme Court found protection for abortion access under the due process guaranteed by the 14th amendment to the Constitution. The 14th amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.
In his draft decision, Justice Alito accuses Roe v Wade of being “egregiously wrong from the start” and posits that “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”. Reading the decision, the moments that elicited feelings of shock, repugnance, or were just plain difficult to stomach, totalled too many to recount. Some of these moments are, however, worthy of mention. On multiple occasions, Justice Alito reminds us that abortion is not a gender-based issue, and therefore does not fall under the equal protection clause of the 14th amendment, citing as his authority Justice Scalia’s opinion in Bray v Alexandria Women’s Health Clinic, which held that an allegation that protestors outside an abortion clinic had a discriminatory animus towards women was unfounded because the protests were not directed towards the women, but instead towards the would-be “victims” of abortion. Justice Alito is mainly concerned with whether access to abortion is a right rooted in the history and tradition of the United States - a query that, at first blush, one might assume to be rhetorical as it is difficult to conceive of the old, white men who controlled the United States’ legislative bodies and courts in their inaugural years and for much of history being mainly concerned with safe and easy access to any women’s health services.
Justice Alito frames the decision to overrule Roe v Wade as the rectification of a legal wrong - the precedent was set in error, and by making this decision, everything is being returned to its rightful order. He delves into an extensive explanation of the limitations of stare decisis - the doctrine which requires courts to make new decisions in line with previous ones - in the case of the Supreme Court. However, there is a marked difference between the cases he uses in his comparison, including Brown v Board of Education, Loving v Virginia, and Dobbs v Jackson Women’s Health Clinic. The former two cases moved the law and its social context decidedly forward, ending “separate but equal” and legalizing interracial marriage. Dobbs v Jackson Women’s Health Clinic appears to fall outside this grand tradition of moving the law forward, even in baby steps. Instead, it is impacting the law backwards, returning to the 13th-century perspectives on pregnancy that Justice Alito cites in his explanation of the history and tradition of abortion regulation. Justice Alito accuses the court of “short-circuit[ing] the democratic process by closing it to many Americans who dissented” from Roe v Wade when the decision was affirmed in Planned Parenthood v Casey. This logic relies on the assumption that the democratic process will reach equitable and just outcomes, and while this is often the case, it is in no way guaranteed. The same examples cited as times when the Court was correct to overturn precedent - Brown v Board of Education and Loving v Virginia, are examples of how the Court can intervene when the democratic process is not creating equality. Here, the Court is perpetuating division and creating inequality once more.
Was Roe v Wade a perfect decision? No. Justice Alito is correct in pointing out it is a confusing decision that merits a deeper analysis and clarification. But even if the Court may have overstepped in 1973 with the scheme it created, the decision has been reaffirmed and relied upon sufficiently that it should not be so quickly done away with, not when the stakes are this high.
As disturbing as this decision is, many of the current Supreme Court justices have been vocal in their scholarship, interviews, and previous jurisprudence on their feelings regarding the abortion question. The most prominent, and recent, example of this perhaps is Amy Coney Barret, who made clear that if the opportunity appeared to overrule Roe v Wade she would take it - and while we do not yet know if she has signed on to Justice Alito’s decision, this statement alone calls into question whether she was indeed an impartial decisionmaker when the Court heard the arguments in Dobbs v Jackson Women’s Health Clinic back in December 2021.
Amy Coney Barret was born in 1972, one year before Roe v Wade was decided. This means that for all of her stated opposition to abortion - and that is perfectly fine as a choice for herself - she has never lived in a time when this was the law. I would posit that it is much easier to be anti-abortion in a world where abortions are legal and accessible. You are never forced to contend with the deadly consequences that inexorably accompany imposing criminal penalties on abortion providers.
Understanding that the current composition of the Supreme Court was set on finding an opportunity to return the decisions around access to abortion to the state legislatures, the question remains as to what they hoped this would achieve. Currently, 13 states have trigger laws which will ban all or almost all abortions in all or nearly all circumstances as soon as Roe v Wade is overruled. Five states could return to their pre-Roe v Wade abortion bans. Another 14 states are likely to impose heartbeat laws, banning abortion before fetal viability. If all 28 of these states were to go down this path, and there is no reason to believe they won’t, just over half of all women in the United States will lose access to abortion or have that access restricted beyond utility.
And maybe that’s the goal.
But much like the failures of abstinence education, banning abortion does not prevent abortions. It will return America to a time when performing an abortion required engaging in criminality, and desperation resulted in life or death situations. Completely taking women’s bodily autonomy out of the conversation, when a woman is seeking an abortion, she is not in a position to take care of a child, or that child. Are unwanted pregnanciess and families who cannot adequately care for them really so much better? Despite often being suggested, adoption is not an adequate alternative in all cases. While it is challenging to find concrete statistics, in the United States, approximately 2% of families adopt, and there are over 100,000 children awaiting adoption in the foster care system, with 20,000 children aging out of that system having never been adopted annually.
The freedom of religion cited by anti-abortion lawmakers and advocates further flies in the face of reason. Freedom of religion includes freedom from religion - preventing the government from imposing religious beliefs on individuals. While interpretations of Christianity may put forward that life begins at conception, Judaism, for example, allows for abortion to preserve the life of the mother. This means total bans on abortion and heartbeat laws violate religious freedom for Jews and others living in the United States.
Overruling Roe v Wade will shine a light on the disparity of wealth in America. Wealthy women and families in Alabama or Mississippi, two states with trigger laws, will be inconvenienced in seeking out abortions but will ultimately be able to travel to another state where safe access to abortion continues to be protected. Women without the resources to travel to another location and pay out of pocket are the ones who this decision will most harm. They are the ones who, in the face of attempting to make a responsible decision about their ability to care for a child or the children they already have, will be left with nowhere to turn.
Even if Roe v Wade was wrong in reaching its conclusions, for the past 49 years, it has saved lives, lowered crime, and allowed women to make responsible decisions. It is difficult to see a decision that takes all of this away as one that is genuinely righting some great legal wrong.