The death of Roe, and the three prongs that killed her

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Today is Dobbs’ decision day. The re-deciding Roe day. The day when the Supreme Court’s conservative wing attempts to enchant us into believing that they are apolitical, and that the Constitution gives them no choice but to reverse 50 years of abortion rights.

Even after closely watching the whittling away of US abortion rights for years, the Dobbs draft opinion, leaked in early May, was particularly disgraceful. Alito’s reasoning is weak and in the service of his ideology, disregarding the rights and interests of pregnable persons entirely.

Rereading Alito’s opinion today, three prongs of analysis emerge.

The first prong: ‘A particular right’

First, we [the Court] explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to “liberty” protects a particular right.

SUPREME COURT JUSTICE SAMUEL ALITO

Under this prong, Alito disparages the reasoning in the Roe and Casey decisions for their reliance on the constitutional right to privacy and the due process clause, rights for which he clearly has little regard. He also brushes aside a new argument that the equal protection clause supports abortion rights. His chicanery on that: A regulation is not necessarily discriminatory, even if for a medical procedure that only one sex can undergo. Therefore it does not necessarily justify the tough maximal vetting by courts used to safeguard persons’ equal protection rights. So a permissive minimal vetting, that gives a lot of deference to states’ interests and near none to individuals’ rights, is sufficient. 

I don’t think so. 

One, the word “regulation” is not interchangeable with “ban.” 

Two, this tells us that Alito really thinks it is justified to not give any consideration at all to pregnable persons’ bodily liberty rights. 

Three, I suspect that he would not differentiate in this way if the state was “regulating” prostate exams by mandating or banning them. 

Four, a concern. This kind of rationalization could be used in states enacting requirements for girls in sports to be examined to prove they were assigned female at birth.

Alito on the pure intentions of the anti-abortion movement

Somehow, Alito found it wise to scold us for thinking that the “goal of preventing abortion” might not have pure intentions. That abortion bans do not by themself constitute any “invidiously discriminatory animus against women.” Meaning that it can not be established that people or politicians simply proposing barriers to abortion have unwarranted, unjust discriminatory hostility (or resentment) against pregnable persons. 

Really? Okay then. Let’s just call it indifference to them. What a callous orientation to have towards states vetoing persons’ bodily liberty rights. Whether one is hostile or apathetic to pregnable persons’ rights and interests, abortion bans impose greater harms to their health and safety. That should be relevant to a court’s analysis.

Alito does not even attempt to grapple with the harms to pregnable persons. Maybe he is unwilling to hear us for fear of siren calls beguiling him into treating us as full equals and away from what he thinks adheres to the intentions of the founding fathers.

The second prong: ‘ordered liberty’

Second, we [the Court] examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’

SUPREME COURT JUSTICE SAMUEL ALITO

Under this prong, Alito breaks down how the court categorizes and describes the substantive due process rights under review. These are fundamental rights that individuals have that courts have held are constitutionally protected against government overreach. Even when the government has been enabled by majoritarian policies enacted using proper democratic procedures. Alito wrote that when liberty rights being claimed are not explicitly named in the constitution that “the Court has long asked whether the liberty right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered Liberty.””

To argue that it is not “deeply rooted” Alito crafts a misrepresentation of some of the legal history of abortion, and points out that abortion wasn’t recognized as a constitutional right until the 1973 Roe decision. I’ve encountered this argument before. To sum up my objections, white men’s history is not the only history there is, and pregnable persons and health care providers had traditions of practicing abortions among many diverse communities.

Trying to bolster his claims that abortion is not a recognized fundamental right, Alito damages his own defense by invoking Sir Matthew Hale, an English jurist from the 1600s whose contributions to law included exonerating husbands from culpability for raping their wives and sentencing two women to death for witchcraft.

Perhaps a less-than-ideal legal progenitor to call upon for wisdom regarding the rights of women in the 21st century.

This was a preventable misstep. Laws and fundamental rights are not always in accordance with one another—otherwise the US would not have needed the Reconstruction Amendments of the 1860s. Hale was writing his opinions on marital rape and witchcraft two full centuries before those amendments attempted to bring law into better alignment with fundamental rights. Maybe Hale got the law right then. I’ll even put aside what Hale’s legal opinions might show of the “invidiously discriminatory animus against women” that Alito suggests is absent from the current roll-back of reproductive rights. 

But what about Hale’s other views on bodily liberty rights?

What I won’t put aside is that Hale’s stance on marital rape is that consent to marriage is equivalent to consent to sex, and that consent cannot be retracted. That a woman cannot exclude a certain man from her own body at her own discretion. That she has renounced and lost that prerogative by saying “I do.” This is the person that Alito wants to put forth as a trusted expert? One who should be relied upon to help ascertain if and whether courts ought to recognize that pregnable persons have a fundamental right to exclude embryos from their bodies? Hale seems to have given little to no consideration of pregnable persons, a position for which he has found a willing stablemate in Alito. .

“There are many themes running through America’s legal traditions that have deep injustices embedded within them,” said University of Minnesota constitutional law professor Jill Hasday in the Boston Globe. “We have to decide how we’re bound by the past. And nothing is forcing us to carry the consequences of women’s legal subordination forward in time.”

Historian Lauren MacIvor Thompson described herself as “shocked” at the reference to Hale in a case related to women’s rights, noting that even for his time, Hale is considered “particularly misogynistic.”

Yes, it is hard to find a man prior to the Civil War who was privileged enough to become a legal or ethical scholar who also supported equal rights of all persons. That is precisely why we shouldn’t look to them to help us interpret or ascertain what constitutes equal or fundamental rights. 

Can the conservative Justices not conceive of a world where they do not look to historical figures from ethically unequal periods to ascertain what equal rights means?

Alito suggests it is wrong to impugn these states wily claimed motives to reduce abortions and protect fetal life. He might be charmed by their impassioned appeals to protect fetal life, and might think why aren’t us scolds convinced. For states to ban abortion, ostenibly without noticing the harms on pregnant person’s rights, bodies, and interests, is negligence at best. Even if there is actually no hostility or ill feelings against pregnable persons living contrary to their ideology, I still very much find fault with two things. Their lack of foresight for after abortion bans, and their apathetic disregard towards pregnable persons.

The third prong: The appeal to precedent, or lack thereof

Finally, we [the Court] consider whether a right to obtain an abortion is supported by other precedents.

SUPREME COURT JUSTICE SAMUEL ALITO

Under this prong, Alito expresses that only “ordered liberty” is protected by the Constitution, saying, “Ordered liberty sets limits and defines the differences between competing interests.” 

First of all, patient and bodily autonomy are not simply interests, they are rights. The difference is everything. When deciding between one person’s rights and another’s interests, rights should always prevail. The alternative amounts to ordered cruelty, which the Eighth Amendment prohibition against government cruelty might have something to say about. “Ordered liberty” seems like some sort of talisman here, one that the state can use to ward off the insubordination to their order that we wilful shrews represent, mandating that we endure violations of our bodily liberty rights. 

The argument that there exists a right to privacy that underpins many court decisions besides Roe is again brushed aside by Alito. These decisions have included recognizing a fundamental right to obtain contraceptives, to conduct private consensual intimacy, and to have marriage equality, among others. He tries to mesmerize us by saying that abortions end a potential life, while those other rights don’t. But he does not go out of his way to assure us that he himself believes in the constitutional right to privacy that underpins all of these decisions. This leaves me unconvinced that he agrees with and supports all of these decisions, and feeling that he rationalized this one difference to conceal that and disarm us. I am concerned that some of those other rights would not stand if they were brought before this US Court. 

We should believe the metaphorical Cassandras on those rights Alito implies are more defensible. They were right about dwindling abortion access and the end of Roe. It is not inconceivable that he would cast them aside the moment they are no longer useful in contrast to a right currently in his jaws.

Alito doesn’t seem to like the use of the concept of autonomy or liberty to support abortion rights. He argues that the pro-choice proponents uses those concepts at too high a level of generality, which could “license fundamental rights to illicit drug use, prostitution, and the like.” Oh no! I respond as I fumble for the fainting couch. Even if it did, so what? While those behaviors aren’t about exercising the bodily right to exclude, we really ought to reexamine the “success” and harms of the war on drugs, the criminalization of sex work, and other generally victimless crimes.

The descent into farce

Farcically, Alito argues that pregnable persons don’t need abortion for equality. As ‘evidence’ to lure us to support this position, he points out there is greater acceptance of pregnancy and parenthood outside of marriage, and that the Family and Medical Leave Act (FMLA) allows American workers leave for giving birth. FMLA allows twelve weeks of unpaid leave in a country where some 40% of people have said that they can’t afford a $400 emergency. 

The tunnel vision is astonishing.

Such a statement ignores that having an infant drastically changes the trajectory of a person’s life. Where they channel their energies must change considerably. They have more expenses and less time to dedicate to pursue their own priorities, especially primary or single caregivers, which mothers more commonly are. We don’t all have the same 24 hours in a day. Being empowered to choose when and if to continue a pregnancy is essential to pregnable persons’ equality of opportunities and self-determination.

As for the magic potion that Alito and Barrett recommend of bringing the pregnancy to term and abandoning one’s infant to strangers, this ignores or minimizes harms to birthing parents. Under abortion bans, states are mandating unwilling pregnant persons to add an infant to their families. Abortion opponents think that a state imposing that first hardship is acceptable because a newly postpartum parent gets to “choose” between two opposing hardships that they really wanted to prevent arising in the first place—a prevention the abortion ban obstructed them from achieving. That “choice” is between the unwanted and overwhelming hardships of either overtaxing themselves to enable the preservation of their new family or of being complicit in facilitating the tragedy of family separation by abandoning their own infant to strangers. 

Even if enduring all of that did not traumatize pregnant persons (it commonly does), there are also the various medical harms of continuing a pregnancy and giving birth that are not given any consideration, some of which can endure for the rest of a person’s life. If people uncritically support the multi-billion dollar private infant adoption industry that exploits vulnerable pregnant persons and pressures them to relinquish, they might want to reconsider that support. 

Per the Turnaway study, about nine out of ten persons who give birth after being denied an abortion will parent their infant. Overwhelmingly pregnant persons are not interested in adoption. Neither are most parents who just went through pregnancy and birth and milk coming in. Many people daydream about what their life with imagined future children could be like. No one daydreams about giving up their infants. 

It is worth noting that three Justices are adoptive parents, and so have benefited from the separations of families in crisis.

The red (state) herring

Alito proceeds to gaslight us further. He said that if pregnable persons wanted to change this, they could do so at the state level. That they had political power, their vote, and they make up a slight majority of the electorate. He might as well have said Women, did you know you can vote? While you can’t convince us to recognize your bodily liberty rights, maybe you can bewitch people and politicians in red states to do so? I know we are making it harder to vote by upholding their voter suppression tactics, but lean in! I also rather doubt that it slipped Alito’s mind that many states take away the right to vote from persons convicted of felonies, that this disportionately impacts communities of color, or that abortion will be a felony in some states now that Roe is dead. 

Alito’s opinion treats pregnable persons’ bodily liberty rights and interests as irrelevant and unworthy of note until they can convince people and politicians in red states to give them the dignity of mere consideration, much less treatment as equals. 

The very selective respect of precedent

Lastly, he addressed stare decisis, the respect of precedent, and when it matters. Alito said for the Supreme Court to respect precedent, the precedent must have gotten the matter right in regard to the Constitution the first time. He then cites a number of decisions that overturned precedent. What he fails to note is that all of these decisions expanded rights, and so curtailed states’ free reign to regulate or criminalize these rights. Now this Court is doing the opposite. For the first time.

With today’s decision, the Court is enabling states to reverse a right that the Court has previously recognized and safeguarded, a decision (to coin a phrase) without precedent. Some fundamental rights ought not to be up to a vote, a fact that the prior courts recognized in the cited prior decisions.

The Dobbs decision released today was written by Alito. Some of the language he crafts in his opinion might have been changed and softened since the leak. Don’t be enthralled by any gossamer acknowledgment of pregnant persons’ rights and interests. 

Any insistence on respect for these things is irreconcilable with the Court upholding a pre-viability abortion ban. This decision means each state can now regulate or ban abortion without regard to pregnable persons’ rights and interests.

Like Alito, the anti-abortion movement can barely acknowledge the pregnable person in the abortion context. When the movement does deign to mention us, they tap into our culture’s toxic brewing cauldron of misogyny, coaxing others to them while they veer between hostile and benevolent sexism. They imply that pregnable persons are either bad women for not behaving subordinately to their ideology, or are helpless victims being pressured by abortion providers and pro-choice philosophy. Pregnable persons having agency and autonomy is bad, goes the implication, unless they are using it to constrain themselves in submission to the ideologies of the anti-abortion movements.

The Justices are supposed to only consider the arguments placed before them. The lawyers arguing against Mississippi’s 15-week ban largely relied on the arguments used in Roe and Casey, asking the Court to uphold its precedents. Arguments Alito rejected. I have previously made new and novel arguments demonstrating that the Constitution does implicitly support a right to abortion access. If those arguments were used, conservative Judges would have two choices: They could double down on the poor reasoning Alito made, reasoning they also side with. Or they could draw upon unjust discriminatory hostility and resentment of pregnable persons who’d seek and obtain abortions to animate themselves in conjuring up new arguments to deny pregnant persons their equal bodily liberty rights, which they of course would carefully obscure underneath a slew of technical legal language and concepts for plausible deniability. Alito’s opinion is rubbish, a judgment it attempts to deflect by calling Roe and Casey rubbish.

The majority of the Justices on the US Supreme Court will not protect our rights. The conservatives on the Court would have us believe their ideological alignment with the law is neutral. They are dishonest operatives who will use their power to rationalize denying us our equal and hard-earned fundamental rights while cloaked in a sham nobility. 

We can’t even rely on state courts that have previously decided that their state constitutions protect abortion rights. On June 17, the Iowa State Supreme Court decided that abortion regulations should not be afforded a tough maximal legal vetting by courts under the state constitution. This came only four years after that court said their state constitution did afford such protection to abortion. 

Abortion is just the beginning. Roe and Casey have lots of siblings. Among them is Obergefell, 7 years old. Lawrence, 19. Troxel, 22. Turner, 35. Winston, 37. Santosky, 40. Cary, Duchesne, and Moore, all 45. Eisenstadt and Stanley, both 50. Loving, 55. Griswold, 57. Rochin, 70. Skinner, 80. Pierce, 97. Meyer, 99, among many others.

We must decide what lessons we choose to learn from these cruel frauds and what different avenues and means each of us has available, where and when we could apply this awareness to protect ourselves and each other, and if and when we will act on this knowledge.