Abortion: Justice Alito’s Draft Opinion

Indeed, it is difficult to imagine any precedents immune to critical reconsideration through the Court’s ideological prism.

RINOcracy.com May 9, 2022

It had been widely assumed that the current Supreme Court would limit, perhaps severely, the constitutional protection of abortion rights that was recognized in Roe v. Wade and modified in Planned Parenthood v. Casey. Yet few were prepared for a decision in the nature of the draft opinion in Dobbs v. Jackson leaked from the Supreme Court. In both tone and scope, the draft opinion by Justice Samuel Alito can be fairly described as a radical document—and the product of a conservative majority from which we may expect more radical departures from supposedly settled law. To be sure, the opinion may be revised before its issuance, but a major change appears unlikely. According to Politico, which obtained the draft, it reflects the views of at least four other conservative justices: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Notably, Chief Justice John Roberts was not counted among them.

The leak itself has drawn expressions of outrage, and the Chief Justice has ordered an investigation by the Marshal’s office of the Court. How vigorous and extensive the investigation will be remains to be seen. (Polygraphs employed? Cell phone data extracted?). In any case, it is a sideshow that should not detract from the importance of the draft opinion itself. Leaks are endemic in Washington and, as the Court has become more conspicuously political, it is perhaps not surprising to find it taking on the norms of the other branches.

Donald Trump campaigned on a promise that he would put justices on the Supreme Court who would overturn Roe v. Wade, and that is at least one campaign promise he now appears to have kept. From its earliest days, the Court has never been far removed from politics, but the dominance of politics and political ideology has seldom, if ever, been quite as naked.

The tone of the opinion was captured in the Atlantic:

The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification.

Tone apart, Alito failed to acknowledge at any point the range of devastating consequences that will be visited upon women by restrictive and punitive legislation in various red states. Beyond that, one of the most remarkable aspects of the draft opinion is its cavalier treatment of prior precedents. It stands in contrast with the respect for Roe and Casey as precedents that the conservative justices expressed during their respective confirmation hearings. Justices Gorsuch and Kavanaugh were particularly outspoken in this regard, leaving Senators Susan Collins and Lisa Murkowski now feeling that they had been misled. This experience suggests that some change in confirmation hearings may be warranted to make them more than an exercise in Kabuki theater.

In general, there has been bipartisan agreement that it is not appropriate to press Supreme Court nominees to indicate how they would vote on particular issues. On the other hand, as the Court has grown ever more political, and its independence more illusory, a different approach may be called for. In the draft opinion, Alito wrote, “Roe was egregiously wrong from the start.” Perhaps as a starting point, it would not be too much to insist that Supreme Court nominees at least identify any outstanding precedents that they believe to be “egregiously wrong.”

Significant precursors to the Alito draft opinion can be found in two prior decisions by the Court dealing with abortion, Whole Woman’s Health v. Hellerstadt (2016) and June Medical Services v. Russo (2019). In Whole Women’s Health, the Court relied on Casey in holding invalid, 5-3, a Texas law requiring physicians who perform abortions to have admitting privileges at a nearby hospital and requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center. Justices Thomas, Alito and Roberts dissented on a procedural ground.

In June Medical Services, the Court struck down a similar Louisiana law. A plurality opinion was written by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan. In a separate opinion, Chief Justice Roberts wrote that, although he believed Whole Women’s Health had been wrongly decided, he would follow its precedent under the doctrine of stare decisis (“to stand by things decided”). He wrote at some length on the importance of that principle and he then joined with the plurality to hold the Louisiana law invalid. Justice Thomas’s dissent included a vigorous attack on Roe v. Wade and the court’s subsequent abortion cases (although oddly giving Casey only a glancing mention). Justice Alito, joined by Justices Thomas, Gorsuch and Kavanaugh, sought to distinguish Casey and Whole Women’s Health, but, unlike Thomas, made no attempt to challenge or even question the Roe/Casey line of authority. After all, it was settled law. So a challenge would have to await the departure of Justice Ginsburg and the arrival of Justice Amy Coney Barrett, whose appointment was rushed through in the waning days of the Trump administration.

Not surprisingly, the Court’s cramped view of stare decisis has led to considerable speculation as to what other precedents may be on the endangered list. Indeed, it is difficult to imagine any precedents immune to critical reconsideration through the Court’s ideological prism. In Dobbs, Alito appeared to establish two alternative grounds for recognition of a constitutional right: that the right is specifically enumerated in the Constitution, or that it is “deeply rooted in our nation’s history.” Hence, the most immediate concern has focused on constitutional rights that, like the right to an abortion, meet neither of Alito’s prerequisites. In the past, the Court has recognized numerous constitutional rights that failed to meet Alito’s specifications, including, for example, the right to same-sex marriage, inter-racial marriage and contraception. Realizing that he had cast too wide a net, Alito sought to dispel concerns for such cases. He purported to distinguish them on the ground that, unlike Dobbs, they did not involve an “unborn human being.” But Alito’s distinction offers little comfort: if recognition of a constitutional right requires it to be either enumerated in the constitution, or deeply rooted in the national history, the involvement of an “unborn human being” is surplusage to a denial constitutional protection. Put another way, there is good reason to fear that Alito’s construct will be applied in a variety of situations wholly unrelated to abortion.

Justice Alito claimed to be leaving decisions concerning abortion to “the people and their elected representatives.” The difficulty with that claim is that numerous polls, taken both before and after the release of the draft decision, show that “the people” object to the overturning of Roe/Casey by margins of approximately 2-1. What about their “elected representatives”? Their failure to reflect the popular will lies in the structural advantage given to less populous states, augmented by Republican success in gerrymandering.

Starting with John Adams and James Madison, many have thought of the Constitution—and later the Supreme Court—as guardians against the tyranny of the majority. How alarming to have now a Supreme Court that sees itself as an agent to preserve a tyranny of the minority. If the invasion of Iraq was the greatest stain on George W. Bush’s legacy, his appointment of Alito has to be a contender for runner-up. While Alito has the company of fellow conservatives, he is clearly a leader of what may come to be seen as a Rogue Court, determined to turn back a variety of constitutional and social clocks.