Alito’s aggressive ruling would reach beyond Roe
The truly shocking thing about the draft Supreme Court opinion overruling Roe v. Wade is not that it leaked, extraordinary as that is. It’s that the opinion by Justice Samuel A. Alito Jr. adopted such an aggressively maximalist position, not only giving states extraordinary leeway to prohibit abortion but also implicitly inviting a flurry of challenges to other precedents, including cases protecting contraception and LGBTQ civil rights. Perhaps the most stunning feature of the opinion is that its indignant tone and aggressive reasoning make clear how empowered this conservative majority believes itself to be.
The bottom line, if the reported majority holds, will be unsurprising. While running for president, Donald Trump promised to appoint justices who would overrule Roe. At the oral argument in December in the challenge to Mississippi’s law prohibiting abortion after 15 weeks, five justices seemed inclined to overrule Roe and Planned Parenthood v. Casey, the 1992 case that reaffirmed the constitutional right to abortion.
But to read the actual draft is another matter. The draft goes out of its way to ensure that there are no limits whatsoever on states’ ability to restrict abortions. It loudly announces that courts should review abortion restrictions under the most deferential standard available, rational basis review, and not “substitute their . . . beliefs for the judgment of legislative bodies.”
Mr. Alito also chose to rely on the most outlandish arguments to justify overruling Roe. In a nod to Justice ClarenceThomas’s baseless claim that abortion is a modern-day form of eugenics, a footnote cites amicus briefs claiming that some abortion-rights advocates are “motivated by a desire to suppress the size of the African-American population” and observes that “it is beyond dispute that Roe has had that demographic effect.” The opinion also invokes Justice Amy Coney Barrett’s stunning suggestion at oral argument that the need for abortion rights is obviated by safe-haven laws, which let parents relinquish their rights by leaving infantsat police stations or firehouses.
The draft also could open the door to claims of “fetal personhood,” a position that would not only permit states to prohibit abortion but would prevent states that choose to allow abortion from doing so. A footnote cites an amicus brief by legal scholars John Finnis and Robert George, who argue that “unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses” — a conclusion they say would make “prohibitions of elective abortions constitutionally obligatory.”
If it becomes law, the draft will also unleash a slew of challenges to other
Since contraception was restricted, sodomy illegal and same-sex marriage inconceivable for much of that history, both supporters and opponents of those other landmark court decisions have wondered whether they can still stand. Mr. Alito dissented in Obergefell — he thought states should be allowed to decide whether to recognize same-sex marriages — and his judicial philosophy suggests he would not have voted with the majorities in Griswold or Lawrence if he had been on the court.
But Mr. Alito distinguishes these other issues from abortion on the ground that the latter involves “the critical moral question” of the destruction of human beings or, at least, “potential life.” He says repeatedly that the court can rule that governments may act on this interest without undermining the other rulings.
The decades-long campaign of resistance to Roe also sets it apart from those rulings. Griswold and Lawrence didn’t lead to any such campaign. Without state legislation to outlaw contraception or sodomy, even a justice who wanted to overturn those rulings would not have any occasion to do it. (This is something Justice Amy Coney Barrett tried to explain during her confirmation hearings.)
Opponents of Roe also had the option to fight it in increments. They could ban some types of late-term abortions, require parental notification or restrict the activities of women’s health clinics, for example, and ask the courts to allow those laws. Eventually, they built up to bans on abortion after 15 weeks of gestational age, the restriction specified by the 2018 Mississippi law that has put the issue before the Supreme Court now. These laws are popular in most polls, gaining support even from some people who consider themselves pro-choice, but directly conflict with Roe. As both parties arguing the Mississippi case agreed, the justices had to choose between keeping the law and keeping Roe.
Same-sex marriage is, by contrast, a binary choice; there’s no equivalent strategy for chipping away at the right in legislatures and courts. A state would have to take it on directly, and there’s no fuzziness about the borders of the holding that would enable state laws to make their way up the courts to the justices.
Roe may be on its way out. But social conservatives are still under political and institutional constraints that would keep them from undoing social liberalism across the board even if they wanted to. The sexual revolution is not going to be repealed.