According to a leaked majority opinion written by Republican justice Samuel Alito, the Supreme Court “has voted to strike down” 1973’s Roe v. Wade, eliminating women’s constitutional right to an abortion and permitting states to criminalize the medical procedure. The opinion is not final, but it has been confirmed to be authentic, meaning that Roe is almost certain to be gone, and abortion will soon be illegal in many parts of the country.
Some of the coverage of the decision has focused on the leak itself. SCOTUSblog called it “the gravest, most unforgivable sin.” Conservatives are up in arms. The Federalist went with the headline “The SCOTUS Abortion Decision Leak Is What Actual Treasonous Insurrection Looks Like.” Right-wing writer Matt Walsh called it “an attempt to completely upend and delegitimize the rule of law, incite violence and chaos, and potentially plunge the nation into civil war.” Cool kid’s philosopher Ben Shapiro called for the leaker to be “prosecut[ed] to the full extent of the law” because “there is little question that this leak is designed to create threat to the life and limb of any justice who signs onto the majority opinion.”
The outrage over the leak is a little odd; if conservatives think the decision is reasonable and good, and if it, or something like it, will soon be the law of the land anyway, they should be pleased. If the news had come out a month before Brown v. Board of Education that the Court intended to strike down segregation in public schools, it’s hard to think anyone would have called the disclosure an act of “treason.” Instead, we must suspect that conservatives would rather discuss the leak than a decision that will be unpopular (fewer than 1 in 3 Americans want Roe overturned) and that makes the Supreme Court look like a nakedly “political” institution imposing the Republican agenda on the country.
But we should keep our focus on what matters: the overturning of Roe is an authoritarian elimination of women’s rights. It is illegitimate and will have terrible human consequences. The Supreme Court justifies its decisions by saying that they are compelled by logic and reason, and if we are to object to the Court’s decision, it is worth not just showing that the right to an abortion is an important social good (something easily proven) but also demonstrating what’s wrong with the explanation Alito gives for striking this constitutional right from the books.
The PDF of the opinion is 98 pages long, but Alito’s reasoning is simple and easy to grasp. Roe v. Wade, he says, was wrongly decided. This is because “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Alito admits that some rights unmentioned in the Constitution may still be protected by it, but such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The right to an abortion, Alito says, has no roots in “tradition,” because “until the latter part of the 20th century, such a right was entirely unknown in American law” and the procedure was criminalized in many parts of the country. In fact, he says, for hundreds of years “great common-law authorities like [Henry de] Bracton, [Sir Edward] Coke, [Sir Matthew] Hale, and [Sir William] Blackstone all wrote that a post-quickening abortion was a crime—and a serious one at that.” In fact, in both English and American law there was “an unbroken tradition of prohibiting abortion on pain of criminal punishment.”
Alito insists that the decision is “not based on any view about when a state should regard prenatal life as having rights or legally cognizable interests.” Instead, he says that the Court in Roe “short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” It is simply not the place of the Supreme Court, he says, to “decide how abortion may be regulated in the States.” Nor can the principle of “stare decisis,” which countenances leaving settled decisions alone, save Roe, because its “reasoning was exceptionally weak” and an “abuse of judicial authority.”
In analyzing Alito’s opinion, the first thing we should dwell on is his phrase “until the latter part of the 20th century.” For Alito, it is very important that “traditionally” there was no fixed right to an abortion, and that the right does not appear in the Constitution. It is a recent right, and for Alito, it is therefore suspect, because as an “originalist,” he believes his job as a justice is to uphold the Founding Fathers’ vision for the constitutional order.
There has already been criticism of Alito’s history here, with historians and legal scholars arguing that Alito is wrong to say that there was an unbroken tradition of abortion criminalization. More importantly, however, none of this history should matter at all, for a very simple reason: until 1920, the United States was officially a patriarchy. The Supreme Court’s decisions about rights were made entirely by men until Sandra Day O’Connor joined the Court in 1981. It’s still the case that only 27 percent of federal lawmakers are women, which itself is a 50 percent increase compared to how many there were just a decade ago. Women had no input into the writing of the Constitution—John Adams literally laughed off his wife Abigail’s plea to “remember the ladies” when drafting the nation’s founding charter. (“I cannot but laugh. … We know better than to repeal our masculine systems,” he wrote to her.) The great legal scholars Alito cites for their authority on natural rights are men named Henry, Edward, William, and Matthew, who likely spent their entire careers without once wondering whether women might have valuable things to say on the topic of their own rights.
The implication of this should be obvious, although it entirely escapes Alito: Unless we are still to live in a patriarchy, we can give absolutely no weight to conceptions of women’s rights that came before women were allowed to participate in politics and law. Let us assume that Alito is entirely correct about his history, and that abortions were widely criminalized in the 19th century, and that the idea of a basic right to abortion does come from the “latter part of the 20th century.” What of it? The laws were being made by men, i.e., they were undemocratic and illegitimate. A court that uses the 19th century definition of women’s rights to decide which rights the Court is bound to protect today is explicitly imposing the past’s patriarchy on the present. It’s a shocking act of turning back the clock, and yet Alito seems unaware that there’s even an issue with citing “traditional” (i.e., patriarchal) rights to decide which rights women have in 2022.
Alito doesn’t actually discuss why all of a sudden in the “latter part of the 20th century” the idea of a right to abortion sprang into being, but a little something happened in the 1960s and 1970s called the women’s liberation movement. Abortion rights did not come from a spontaneous whim by Roe’s opinion author Justice Harry Blackmun. They were the culmination of a social movement that arose because women were horrified that laws written by men were causing women horrific suffering and death, and being forced to give birth against one’s will was considered a grotesque violation of women’s rights.
The stories of pre-Roe America are easily found and very disturbing. Underground feminist groups worked to help women procure illegal abortions, though they faced both the possibility of prosecution and serious medical risks. Leslie J. Reagan, in When Abortion Was a Crime, describes the situation:
“Public-health statistics revealed an appalling picture of death and discrimination. Health-care workers and public-health officers observed women dying and thousands more hospitalized as a result of a procedure that could be safe but was not because it was illegal. The illegality of abortion had produced a public-health disaster—especially for low-income and minority women. … The risk of dying from an abortion was closely linked to race and class. Nearly four times as many women of color as white women died as a result of an abortion. … The story of Doris B., a twenty-six-year-old black woman in Chicago, underlines the inherent limitations of legalization in one faraway state and of local efforts to provide abortions for low-income women who sought them. Even though the referral service and [the Jane Collective] tried to help all Chicago women who needed abortions, some low-income women never found either organization. The “tragic event” was, her friend later wrote, “well-etched in my memory.” Doris B. had four children and depended on welfare to care for them. “It was a constant struggle to provide for these children,” her friend recalled, “and she felt that another child was more than she could endure.” Doris B. considered going to New York, but poverty “made that impossible. Doris chose the ‘cheaper’ illegal alternative in Chicago.” She died from septicemia following her illegal abortion in 1972, and her children became orphans.
So Roe came about in part because feminist legal scholars made the compelling argument that criminalizing abortion was an unconstitutional deprivation of a basic liberty. The state did not have the right to impose these kinds of horrors on its citizens.
The legal reasoning of Roe has been criticized since the decision was announced in 1973. Indeed, the reasoning of the opinion is a mess, and its critics are right that it essentially invents a right and creates arbitrary legal distinctions (the right varies by trimester of pregnancy). But it’s important to understand why the decision is a mess: Conservatives are certainly correct that the Supreme Court, in Roe, decided that there ought to be a constitutional right to abortion, and then declared that therefore there was one, even though the Constitution itself is silent on the question. But conservatives miss why this is a legitimate way for the Court to operate. Conservatives typically believe that the job of a judge in constitutional law cases is to apply the Constitution as written, and so they see efforts to grant new rights as a form of “judicial activism.” They do not reckon with the fact that the Constitution has almost no democratic legitimacy, because the Founding Fathers chose not to have it ratified by most of the people who would be ruled by it. This causes a very serious problem when members of the groups excluded from the document’s drafting (such as women, Native Americans, and Black people) seek to assert claims of having fundamental rights and to block the state from violating those rights. To apply the Founders’ Constitution is to impose the vision of a small group of 18th century property owners on people who never consented to be ruled by that group.
Roe v. Wade, then, was part of the attempt to save the Constitution by ensuring that judges interpret it to contain an unwritten provision that reads something like “Do not commit any especially egregious infringements on people’s liberties.” Other cases from Brown v. Board of Education (barring racial segregation in public schools) to Obergefell v. Hodges (barring the prohibition of same-sex marriages) are part of this tradition, which tries to ensure that the law does not get too out of step with the basic principles of justice and the demands of previously-excluded groups to have their rights respected. For an “originalist” committed to enforcing the vision of the white men who ruled the country for centuries, it would be difficult to justify striking down segregated schools. But the judges of the Warren court understood that if people are to have any respect for a legal system grounded in illegitimacy and unfairness (the Warren court was, after all, 9 white men, until Thurgood Marshall was appointed in 1967), it is necessary for the institution to attempt to avoid the appearance of upholding a repressive social order.1
What Samuel Alito doesn’t understand, then, is that by making it clear that he wishes to enforce “traditional” conceptions of rights, he eliminates any reason why people who hold different conceptions of rights should respect the Supreme Court. Alito’s opinion includes an outright “fuck you” to members of the public who might be outraged at having a basic constitutional right stripped away: “We cannot allow our decisions to be affected by extraneous influences such as concern about the public’s reaction to our work.” Clarence Thomas said something similar about the decision, commenting that the public is “becoming addicted to wanting particular outcomes” from the Supreme Court, but “we can’t be an institution that can be bullied into giving you just the outcomes you want.” Alito and Thomas are determined to enforce their understanding of the Constitutional order by overturning Roe, even if less than a third of Americans are with them. But the question they don’t seem to have asked themselves is: why should the rest of us then respect their decisions? If the Supreme Court consists of a group of right-wing idealogues, who pretend not to be enforcing their political preferences even though that’s exactly what they’re doing, enforcing a document that was never ratified by the populace, what allegiance is such an institution owed? Why should people be content to have the absolute power to determine basic rights vested in this tiny group of unelected, unaccountable ignorant reactionaries? Many women will not see any reason why the scope of their own bodily autonomy should be decided by Clarence Thomas (an alleged sexual harasser) and Samuel Alito (who once joined a group devoted to keeping women and people of color out of Princeton). If Alito and Thomas take their “originalism” seriously, and are determined to impose it on the rest of us, there is no reason for us not to try to strip the Supreme Court of its power, or pack it with those we can better trust to enforce the liberties we value.
There is something tyrannical about Alito’s imposition of The Traditional Conception of Rights, which he says did not include abortion, on a public that overwhelmingly did not wish to see the constitutional right to abortion taken away. Today, the people of the country possess a guaranteed liberty against criminalization by the state that may be taken away from them in a matter of months by unelected jurists who do not think women’s bodily autonomy is valuable enough to protect. Alito protests that his decision does not weigh in on whether banning abortion is good or bad—it merely leaves it up to the states to decide.2 But this is dishonest: one of the reasons Alito gives for overturning Roe but not overturning same-sex marriage or the right to birth control (which are also not explicit in the Constitution, and had to be made up after the fact) is that the government has a greater interest in regulating abortion because of the value of fetal life. (“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledge: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”) In other words, it’s precisely by taking a position on the philosophical question of how important unborn “life” is relative to the right of bodily autonomy that Alito justifies overturning Roe. (Of course, even though Alito draws this distinction, his emphasis on Traditional Rights still means same-sex marriage and even the right to birth control are under threat. These rights are based on reasoning that is just as shaky from an originalist perspective.)
But even though having a small group of unelected Republicans taking away an important constitutional right, in violation of the wishes of the majority of Americans, would seem plainly undemocratic, there are those who say that it’s actually the defenders of Roe v. Wade who are opposed to democracy. Glenn Greenwald, for instance, says that many defenders of Roe are confused about democracy, and that while they think they oppose “unelected judges” making laws, asking for courts to protect the right to abortion means asking unelected judges to overturn democratically-promulgated laws. He explains:
Like the U.S. Constitution itself, the Court is designed to be an anti-majoritarian check against the excesses of majoritarian sentiment. … [T]he purpose of the Bill of Rights is fundamentally anti-democratic and anti-majoritarian. It bars majorities from enacting laws that infringe on the fundamental rights of minorities. … The mere judicial act of invalidating a law supported by a majority of citizens—though frequently condemned as “undemocratic”—is, in fact, a fulfillment of one of the Court’s prime functions in a republic. … Unless one believes that the will of the majority should always prevail—that laws restricting or abolishing free speech, due process and the free exercise of religion should be permitted as long as enough citizens support it—then one must favor the Supreme Court’s anti-democratic and anti-majoritarian powers. … [The argument that] unelected Supreme Court Justices have no business mucking around in abortion rights—is supremely ironic given that it was unelected judges who issued Roe back in 1973, in the process striking down numerous democratically elected laws. … Roe was the classic expression of the above-described anti-majoritarian and anti-democratic values: seven unelected men (for those who believe such demographic attributes matter) struck down laws that had been supported by majorities and enacted by many states which heavily restricted or outright banned abortion procedures. The sole purpose of Roe was to deny citizens the right to enact the anti-abortion laws, no matter how much popular support they commanded. … The right of the people to decide, rather than judges, is the primary value which Alito repeatedly invokes in defending the overruling of Roe and once again empowering citizens, through their elected representatives, to make these decisions. … [W]hether Roe’s anti-democratic ruling was an affirmation of fundamental rights or a form of judicial tyranny depends solely on whether one believes that the Constitution bars the enactment of laws which restrict abortion or whether it is silent on that question. … [T]he only way to defend Roe is to acknowledge that your view is that the will of the majority is irrelevant to this conflict, that elected representatives have no power to decide these questions, and that all debates about abortion must be entrusted solely to unelected judges to authoritatively decide them without regard to what majorities believe or want.
Greenwald is being quite dishonest here, by accepting the conservative view that abortion restrictions are desired by a “majority,” and pretending that the Supreme Court is merely allowing that majority to have its way and declining to step in the way of “democracy.” Greenwald doesn’t mention the fact that less than a third of Americans wanted Roe overturned, which undercuts his assertion that “the only way” to defend Roe is to say that “the will of the majority is irrelevant.” In fact, a Court that simply deferred to majority opinion would not have overturned Roe, and this is not one of those cases in which the Court is being asked to thwart public opinion. Even when Roe came out, polling suggested it had more public support than opposition, although the decision was less popular then than it is today. Nor is Greenwald correct that the laws Roe overturned in 1973 were “democratically elected.” [sic] Most had been on the books for a century, and they were made by a patriarchy. It is wrong to assume that “what state governments do” and “democracy” are synonymous in a political system like that of the United States, and that’s especially the case when we talk about the laws on women’s rights that were in place at the time of Roe.
But even though Greenwald is wrong in characterizing pro-Roe sentiment as anti-majoritarian, he does raise an important issue for critics of the Supreme Court. Those of us who think popular opinion should be deferred to on Roe still need to have an answer for when we think it’s acceptable for the Supreme Court to go against popular opinion. If the majority of the public wants to throw leftist dissidents in jail or eliminate the procedural rights of criminal defendants, presumably in those cases we like it when “unelected judges” are standing in the way of “democracy.” In fact, if public opinion was more strongly against abortion, those now arguing for deferring to the pro-Roe majority would be making the case that minority rights need to be protected against majority attempts to curtail those rights. Does the selective desire for judges to respect democracy make one an unprincipled hypocrite?
I don’t think so, because I think one can have a pretty consistent view of how judges should interact with public opinion. As a civil libertarian suspicious of expansions in the state’s power to criminalize and punish behavior, I generally believe that judges should be deferential to public opinion when the public wants to limit the state’s right to criminalize, but be willing to buck public opinion when the public is supporting the abridgment of basic liberties and the expansion of criminal punishment. So I think democracy should be deferred to most of the time, and the cases where it shouldn’t are those where the democratic process is being used to create authoritarianism. This means that the court should not strip away a constitutional right and give the state a new criminalization power if the public doesn’t want the court to do this. But if the public does want the court to do that, the court should be willing to slow down or place obstacles in the public’s way, because criminalization powers are very dangerous. The point is that to the extent the court acts in a “countermajoritarian” way, it should be in those cases where it needs to step in to safeguard individual liberties. It should certainly not be, as in Alito’s opinion, in a case where the court is actually stripping the public of a constitutional protection that the public would like to retain.
Samuel Alito’s leaked opinion is an atrocious piece of work, both morally and logically. It is logically atrocious because it doesn’t engage with the arguments that were actually made by those who fought for the right to abortion, showing why the state cannot legitimately hold the right to force someone to give birth on pain of criminal punishment. He does not appear to have read much feminist legal scholarship, and contents himself with simpleminded invocations of Tradition. He seems to take it for granted that women in 2022 will give great weight to the opinions of Sir William Blackstone as to state regulation of uteruses. I cannot see how this opinion will persuade anyone who is not already a committed originalist—a position that cannot be held by any person who believes laws require the consent of the governed.
But while legal scholars tend to object more strongly to errors of logic than errors of morality, Alito’s opinion is also atrocious because of the kind of unconscionable governmental repression it will enable. Criminalized abortion is a horror. Regardless of where one comes down on the philosophical question about the beginning of life, the use of police and prisons to control birth is inevitably dystopian. Alito does not even discuss what this world will look like, because legal originalists exempt themselves from having to think about the real consequences of their horrible decisions, but nobody should want to return to the pre-Roe world, which can be glimpsed in countries where abortion is presently illegal. We may indeed soon see the conservative assault widen, with birth control vulnerable next. If Alito, Thomas, and company are serious about enforcing only those rights spelled out explicitly in the Constitution, it will rapidly become clear just how inadequate a document the Constitution truly is, and we will find that in order to have a livable country, we need to replace both our founding document and our judges.
One of the critiques made by critical race theorists is that the Supreme Court makes precisely those concessions necessary to ensure it doesn’t appear racist, without ever actually taking the steps that would bring us closer to meaningful racial justice. ↩
Note that many conservatives insist this is an issue of “federalism,” meaning that what they claim to object to is the federal government deciding the question of abortion rather than all 50 states getting to adopt different policies. First, this is about as compelling as was the “federalist” argument against the Civil Rights Act or Voting Rights Act—it’s not that we oppose civil rights or voting rights, it’s just that we believe states should be allowed to take them away. Second, while today’s conservatives insist on federalism in abortion law, it’s likely that once Roe is gone, they will begin pushing for a nationwide ban on abortion. Right-wing writer Matt Walsh called the decision “only the first step. Next, abortion must be criminalized nationwide. The baby killers must not be given any safe harbor, anywhere to hide.” It is very likely that many pundits will lose their principled interest in the rights of state governments if and when increased federal power is the more effective route to ending abortion. ↩