Alito’s draft opinion imperils more than abortion
The deeply regrettable leak of a draft Supreme Court opinion that would strike down the right to abortion doesn’t tell us how the case will ultimately be decided. A draft is precisely that — a first attempt by the writer (in this case, Justice Samuel Alito) to express the views of a majority of the court’s members. A draft can go astray and lose the majority.
The leak does, however, show how far
Alito seeks to go, and how far he believes the majority will go with him. It’s a long way. Further, perhaps, than the justice is willing to acknowledge.
Alito’s draft heaps page after page of abuse and scorn on the court’s 1973 ruling in Roe v. Wade. Grand theater, but not much more, for the defects of Roe as constitutional law have been noted by commentators across the political spectrum. What matters more is Alito’s refusal to engage fully with the 1992 ruling in Planned Parenthood v. Casey.
Roe focused on the rights of doctors to treat patients. Casey put the emphasis where it properly belongs: on the rights of women. At heart, Casey asks: Does government have unlimited authority to force a woman to carry an unwanted fetus? Casey answers: No.
Alito would say yes — defining an “undue burden” on a woman’s freedom is too difficult; therefore all burdens may be acceptable. Left unclear is the answer to an obvious next question: What else can a woman be forced to do?
For half a century, abortion rights have been properly understood as part of a line of Supreme Court decisions defining a zone of individual autonomy around matters of sex and child-rearing. The line began with cases limiting the government’s power to tell married couples how to raise their children. From there, later justices concluded that married couples also had a right to use contraception to control whether and when they would have children.
Later still, the court limited government power over whether and whom a person should marry and gave unmarried people the same rights to contraception that married people had been given.
Though he claims otherwise, Alito would orphan all those rights with his would-be ruling. For he asserts that no zone of privacy exists around family matters unless it is expressed explicitly in the Constitution, or was plainly recognized at the time the 14th Amendment was ratified in 1868.
“For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens,” Alito writes in the draft. With a tweak to the number of years, precisely the same could be said of the right to contraception, the freedom of unmarried couples to control their intimate lives — even the right of individuals not to be sterilized against their will.
There is something disingenuous about Alito’s unsupported assertion that early-term abortion is easily distinguished from this earlier line of privacy cases. As a Roman Catholic, he is well aware that his own church rejects any such distinction. The 1968 papal encyclical “Humanae Vitae,” which still defines official church doctrine, teaches that the use of artificial contraception to avoid pregnancy is a moral offense.
If Alito’s sweeping and categorical draft becomes law, future justices would be hard put to explain why contraception must be legal. The Constitution doesn’t mention contraception, nor was a right to contraception widely recognized in 1868. In fact — to borrow from Alito — for the first 177 years after the adoption of the Constitution, each state was permitted to address this issue in accordance with the views of its citizens.
The point here is not to predict that states will begin putting limits on access to contraception. Rather, should Alito’s draft opinion be affirmed by the court’s majority, there will be little to prevent states from enacting limits if they wish.
Women will have only as much guaranteed autonomy over their childbearing as they had in 1868.
Alito’s draft recognizes the rights of an hour-old zygote, but not of a 12-year-old impregnated by a rapist.
More precisely: Alito would authorize any state legislature to criminalize the abortion of an hour-old zygote by a 12-yearold rape victim. This is not hyperbole; at least 10 states have already passed anti-abortion laws with no exception for rape or incest.
Will there be any limit to the steps a state can take to enforce proper care and delivery of each fetus? Alito suggests this is a question for the Americans of 1868 to answer.
Today’s women should be thankful for the 19th Amendment, which engraved their right to vote into the Constitution. Should this draft become law, they are going to need it to defend themselves.