--This article first appeared in The Progressive
[Post-publication Update: The Supreme Court has spoken. In a majority opinion written by the Ayatollah Alito and released on June 24, the court has overturned Roe v. Wade, ending the federal constitutional right to abortion and endangering other privacy-based rights, such as same-sex marriage and--wait for it--contraception. The most recent state-by-state polling shows widespread support for abortion rights in many, but by no means all, "red" states. At the same time, trust in the Supreme Court continues to drop. And as support for the court declines, strong majorities favor term limits for the justices, a binding code of ethics for the court, and expansion of the number of seats on the high tribunal.]
Make no mistake: If U.S. Supreme Court Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization becomes final without significant revisions, abortion will once again become a crime in the United States. And it won’t just become a crime in some states. If Republicans regain control of Congress in 2022 and the White House in 2024, there’s a very real possibility that abortion could become a federal offense.
To understand how this could happen, it’s necessary to grasp the sweeping and patently ideological nature of Alito’s draft. The draft overrules both Roe v. Wade and Planned Parenthood v. Casey, the twin pillars of the federal constitutional right to abortion. The opinion doesn’t just chip away at the federal right or uphold Mississippi’s statute banning nearly all abortions after fifteen weeks—it abolishes the federal right entirely and without limitation.
Alito stresses that both the Roe and Casey decisions were “egregiously wrong” from the start because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in our national charter. As a result, he writes, abortion cannot be deemed a right explicitly reserved to the people.
Alito also argues that abortion cannot be considered an implied or “unenumerated” right under the Fourteenth Amendment—as Roe and Casey held—because the right is not “deeply rooted in our history and tradition.” To the contrary, he contends, when the Fourteenth Amendment was ratified in 1868, “three quarters of the States [had] made abortion a crime at all stages in pregnancy.”
Against this backdrop, Alito concludes the court is free to overrule both Roe and Casey—decided in 1973 and 1992, respectively— unconstrained by the doctrine of stare decisis, which holds that courts must adhere to precedent. But not to worry. Alito’s draft assures us that overruling Roe and Casey is a good thing, and will benefit everyone by returning the issue of abortion to “the people’s representatives.”
To drive home the point, Alito likens his draft to Brown v. Board of Education, the landmark case that overturned Plessy v. Ferguson and officially ended segregation in public schools. “Some of our most important constitutional decisions have overruled prior precedents,” he notes, equating his draft to Brown, and Roe and Casey to the dreaded Plessy.
The truth, of course, is the exact opposite. While controversial, Roe and Casey were decided squarely in line with prior Supreme Court precedents that extended the concept of liberty under the Fourteenth Amendment to privacy interests like the right to interracial marriage (Loving v. Virginia, 1967), the right to obtain contraceptives (Griswold v. Connecticut, 1965), and the right to not be sterilized without consent (Skinner v. Oklahoma, 1942).
Nor is it true that abortion at all stages was mostly illegal before Roe. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law. Abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”
The belief that life starts at conception, one of the primary arguments on the religious right for blanket, no-exception abortion bans, is also relatively new. “At conception and the earliest stage of pregnancy before quickening, no one believed that a human life existed; not even the Catholic Church took this view,” Reagan wrote. “Rather, the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.”
Alito fails to mention that the impetus to outlaw abortion began only in the 1850s, spurred by the fledgling American Medical Association’s desire to gain control over the practice of medicine and curtail the work of midwives and homeopaths.
The AMA’s crusade, Reagan instructed, was a form of backlash against the rising aspirations of women and thus “antifeminist at its core.”
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In a Los Angeles Times op-ed published on May 4, entitled “The Supreme Court Flunks Abortion History,” Aaron Tang, a law professor at the University of California, Davis, delivered a smackdown of Alito’s scholarship.
“Our nation’s history actually does support a right to abortion for much of early pregnancy,” Tang advised. “The best evidence is that only sixteen of thirty-seven states banned pre-quickening abortions when the Fourteenth Amendment was ratified. In the other twenty-one states, abortion remained perfectly lawful through roughly sixteen weeks of pregnancy.”
So much for fairness and accuracy.
If Alito’s draft becomes final, abortion will likely become illegal in twenty-six states, according to the Guttmacher Institute. These include states that enacted laws before Roe that have never been removed from the books; states with so-called “trigger” laws that will take effect automatically when Roe is overruled; and states with constitutional bans that will be activated and enforced post-Roe.
The new abortion bans will also spark criminal prosecutions. According to an analysis by Forbes, once Roe is jettisoned, performing an abortion will become a felony in more than a dozen states.
While most prosecutions likely will be directed at doctors and clinics, the National Association of Criminal Defense Lawyers (NACDL) warned in a comprehensive report last year that state laws defining “personhood” to include fetuses will “expand the reach of criminal liability” for pregnant people who self-induce miscarriages. Just last week, in response to the leak of Alito’s draft opinion, the Louisiana state legislature advanced a bill that if enacted will classify abortion as homicide.
And there is no reason to believe the GOP and the “right-to-life” movement will stop at the state level. In an amicus curiae (“friend of the court”) brief submitted in the Dobbs case, Princeton University professor Robert George and University of Adelaide professor John Finn argued that “unborn children” are persons from the moment of conception and that Congress has the power to enact legislation protecting the unborn. Alito’s draft cites Gage and Finn’s brief with approval, albeit in a footnote.
In a May 6 interview with USA Today, Senate minority leader Mitch McConnell gave the game away, saying that a national abortion ban would be on the agenda if the Supreme Court overturns Roe.
“[I]f and when the court makes a final decision, I expect everybody will be more definitive,” McConnell said. “But I don’t think it’s much [of a] secret where Senator Republicans stand on that issue. ”There is already a federal statute that makes the performance of “partial birth abortions” a felony. In 2007, the Supreme Court upheld the statute in Gonzales v. Carhart by a vote of 5-4, with Chief Justice John Roberts, and Justices Clarence Thomas and Alito in the majority.
All it would take for a more comprehensive federal ban to take effect is a Republican-controlled Senate that carves out an exception to the filibuster rule for fetal personhood legislation, and the reelection of Donald Trump or the installation of another ultra-right candidate to sign the legislation into law.
And then there is the domino-effect that overturning Roe will have on other privacy issues. With Roe gone, marriage equality and LGBTQ+ rights will likely be the next to fall. If these federal protections are stripped away, states which still have draconian sodomy laws on the books could begin enforcing them once more. After decades of condemning liberal justices for lacking impartiality and engaging in “judicial activism,” the conservative supermajority dominating the Supreme Court appears more than willing to use judicial power to remake the United States into a white Christian nationalist country.
But the true majority—Americans who support abortion rights and democracy—are not powerless. We have the numbers and the incentives to mobilize in the streets and at the ballot box to overwhelm the radical right and force passage of state and federal legislation in support of civil liberties and civil rights.
It will take time, but if necessary, we can even win legislation to expand the number of Justices on the Supreme Court to bring the court in line with the needs and values of the twenty-first century. We only have to realize our power and commit ourselves to using it.