Court’s draft decision moves away from liberty
Last week, the United States Supreme Court confirmed that a leaked document was, in fact, a draft majority opinion overturning Roe v. Wade. Justice Samuel Alito authored the draft, declaring that a woman’s right to make the most personal of decisions — whether to bear a child — is not protected by the United States Constitution because no such right is “deeply rooted in this Nation’s history and tradition.” The court has not issued a final decision, but the strong likelihood is that Roe will fall in June.
Over the past hundred years, the Supreme Court presided over an expansion of American freedom. This expansion was grounded in the 14th Amendment and the idea that if American liberty means anything, it means that no government can dictate how Americans resolve the most fundamental decisions concerning their own personal existence.
By the time the Supreme Court decided Roe in 1973, it had already established that the Constitution prevents the government from invading Americans’ rights to make intimate, personal decisions about the most important aspects of their lives. This realm of personal autonomy included parental decisions concerning the education of their children; an individual’s decision to marry a spouse of a different race; a married couple’s decision to use contraception within their marital relationship; and an individual’s decision to refuse medical treatment.
In this context, Roe’s result was not surprising. Similar to earlier cases, the court found that women had a protected liberty interest in the most personal and intimate decision many women ever face — whether to become pregnant and bear a child. Since Roe, the Supreme Court has extended these Constitutional protections to gay Americans and their relationships.
The Constitution does not expressly mention any of these rights, but few Americans would feel free without them.
In his draft opinion, Justice Alito “emphasize[s] that our decision concerns the constitutional right to abortion and no other right.” He acknowledges that the right to abortion established in Roe falls within the same realm of personal liberty as many other rights the court has identified, but Roe, he says, is different because abortion destroys a fetus. This revelation that abortion involves the termination of a pregnancy is nothing new. Both Roe and its follow-on case, Casey, wrestled with the serious moral and legal implications of abortion for both the woman and her fetus. In those cases, the court’s answer was not to discard the woman’s constitutional protections altogether, as Alito now proposes, but to permit certain state regulation of abortion as long it did not unduly burden a woman’s exercise of that fundamental right. This has been the law for nearly 50 years.
So, what’s really going on here?
Decades of jurisprudence have expanded freedom for men and women, but Roe is the only case among those precedents that recognized a need for constitutional protection unique to women. Roe and the Constitution empowered women to participate fully and equally in the life of the nation by placing in their capable hands the decision of when and whether to bear a child. The court’s acknowledgment that the rights of American women are not contingent on whether men derive the same benefit is central to Roe. This is what Justice Alito would undo.
Notwithstanding Justice Alito’s protests, this draft opinion is about much more than abortion. Justice Alito’s reasoning takes aim at the entire concept of personal liberty. According to the draft opinion, the Constitution protects only those implicit rights that are “deeply rooted in this Nation’s history and tradition.” You don’t have to be a constitutional lawyer to recognize that Justice Alito is putting 100 years of Supreme Court jurisprudence concerning contraception, interracial marriage, gay rights, parental rights and medical freedom back on the table. When the challenge to those rights inevitably comes, an ascendant conservative wing of the Supreme Court will decide anew whether such rights fit neatly within its view of the “Nation’s history and tradition.”
The court may back away from this precipice. For much of its history, the court has helped us move — slowly and haltingly — toward a shared experience of freedom and citizenship. Justice Alito’s draft opinion, however, represents the first step in a retrenchment that would deprive Americans of the right to pursue their dreams on equal footing as citizens in full. He would make the court an instrument of division at a time when our sense of national unity is already badly frayed.
That Roe is in peril reminds us that nothing is settled in a democracy. The Constitution has guaranteed the personal liberty of American women for nearly 50 years. If the court adopts Justice Alito’s opinion, that liberty will be stripped away. The court would hold that our Constitution provides women with no refuge from forced pregnancies, forced births and all the attendant risks, criminal investigations following miscarriage,
If American liberty means anything, it means that no government can dictate how Americans resolve the most fundamental decisions concerning their own personal existence.
among other degradations.
Our Constitution does not forsake American women in this way. Their liberty, interest in the integrity of their own bodies and the sanctity of their own personal choices are the same as anyone’s. If the majority of the Supreme Court tells us that our great Constitution is too impoverished to protect those liberties, it will do great damage to the credibility of the court and our collective freedom.
That will be a shameful day in our nation’s history, but it will not be the last day. The centurieslong work of bringing all Americans safely within the Constitution’s protection will continue. That work belongs to all of us.