My Turn: The Supreme Court v. Our Rights

  • In this 2019 file photo, Supreme Court Justice Samuel Alito testifies before the House Appropriations Committee on Capitol Hill in Washington. AP

Published: 5/10/2022 12:07:35 PM

There’s speculation galore as to who leaked Justice Samuel Alito’s opinion. But who did it doesn’t matter much. What matters is what Alito wrote.

What he wrote without equivocation in his draft opinion in Dobbs v. Jackson Women’s Health Center is that the Constitution does not protect a woman’s right to an abortion. Alito skips any significance that might attach to a woman’s right to privacy and baldly asserts that a woman has no cognizable liberty interest in controlling her own body and reproductive choices. If you apply his reasoning (more on this in a moment) to other cases that have established constitutional rights, you can also kiss goodbye the right to contraception, to gay marriage, and to sexual intimacy in the privacy of your own home.

Alito apparently recognizes that his opinion makes his intentions too clear, and so near the end asserts that the decision only applies to abortion where the life (to him) of a zygote or fetus is at stake. That statement is misleading and frightening.

Frightening because Alito assumes that the rights of a fetus always trump the rights of the pregnant woman, no matter how egregiously she may suffer, no matter if the pregnancy is caused by rape or incest. No matter what.

Misleading because the decision, its analysis and conclusion, will stand as precedent for many decades to come. Remember, this right-wing Supreme Court majority is young. Amy Coney-Barrett is 50, Brett Kavanaugh 57, and Clarence Thomas is only 73, so he probably can pick a convenient time to retire and allow the next Republican president to appoint an equally right-wing successor.

Back to Alito’s logic and the holding. Alito and a majority of the court are ruling that politicians have the right to control women’s bodies and their lives. His rationale about the primacy of the rights of a zygote or a fetus validates the constitutionality of almost any present or future anti-abortion law, no matter how draconian.

Alito claims that his judgment has been deeply influenced by the fact that the Constitution does not include the word abortion. When the Constitution was adopted, women had no rights, so how can that fact possibly be important, much less determinative?

To try to bolster his position, Alito appends to his decision a list of the abortion laws enacted by states in the 19th century, years after the country’s founding. Alito, who espouses originalism (the legal theory that the meaning of the Constitution was fixed at the time of the country’s founding) as his lodestar concludes from his list that abortion was proscribed at the time the Constitution was written.

He’s probably just plain wrong about that. The better view of the historical record is that the common law of England and the colonies put in the hands of women — yes, women — the right to induce an abortion until the time of quickening. Quickening means the time when the pregnant woman could feel movement in utero. Interestingly, quickening occurred at the same time in a pregnancy when Roe says a state can impose significant restrictions.

Alito’s contrary history about abortion allows him to ignore the Ninth Amendment. That penultimate provision in the Bill of Rights specifically provides, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

After Alito’s opinion is officially published, the laws in 26 states will outlaw abortions. A woman who has an abortion, her doctor, and the person who mailed her the abortion pills all could be indicted for homicide. States will pass laws to criminalize women traveling to another state for the procedure, and women securing abortion pills from out-of-state. States will authorize prosecution of child abuse charges against a parent who helps their daughter arrange an out-of-state abortion.

And now this story gets worse. Republicans have promised that when they win the next elections and control the House, Senate and the presidency, they will outlaw abortion nationwide.

There is no silver lining here. There is, rather, an incontrovertible record of what Alito and his brethren believe. It illuminates the assault on individual rights and equal protection that generally they countenance.

Indeed, the leaked draft presents a stark demonstration of what happens when Supreme Court justices Thomas, Alito, Neil Gorsuch, Kavanaugh and Coney-Barrett (and often, Chief Justice John Roberts) use the power they have aggregated to themselves to impose their political agenda on the country. After this decision, what will distinguish the Supreme Court from the other two political branches of government is that these politicians wear black robes.

Two final thoughts: A right used to be something that couldn’t be taken away. That’s why we call it a right. This opinion changes that.

Second, as many commentators have pointed out, some words in Alito’s majority opinion are apt to change before the final decision is published. However, the odds that the holding will change are miniscule because at this point there is no reason to believe that the court will respect the half-century of precedent of reproductive choice. After all, Alito was assigned to write the draft on behalf of the majority of the court after oral argument, after the justices voted on what decision to reach.

Chief Justice Roberts has said that if “the person behind (the leak) thinks it will affect our work, that’s just foolish.” In an early statement Roberts pointed out that Alito’s draft “does not represent a decision by the Court.” He could have added one word: Yet.

Bill Newman, a radio show host and partner in the Northampton law firm of Lesser Newman Aleo & Nasser, writes a monthly column.

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