An Aborted Right: After Abortion, What Will the Supreme Court Target Next?

Henry Choisser

“The underlying theory on which Casey rested — that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty” — has long been controversial.” 

“Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.” 

“Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” 

- Justice Alito in his majority opinion 

On June 24th the conservative supermajority on the Supreme Court invalidated nearly 50 years of its own precedent, and stripped millions of women of their right to control their reproductive autonomy - a right that has been held for multiple generations. I don't expect to change anyone’s stance on abortion, nor will I try to, but I will profess my deep misgivings about how the majority came to their ruling, and concerns I have for other important precedent recently considered inscrutable. As shown above, the majority opinion in parts reads as much like an editorial as this Op-ed, yet it affects the course of our nation’s legal future. As former Supreme Court Justice Oliver Wendell Holmes Jr. said: “the life of the law has not been logic: it has been experience.” I might not be able to fight Alito's legalese, but I can certainly find fault in the historical experience on which his analysis relies and the consequences for the outcome of his analysis. 

In his opinion, Alito makes impassioned philosophical queries about the variation in the age of fetal viability, asking “on what ground could the constitutional status of a fetus depend on the pregnant woman’s location [and available medical care]?”. To which I have a simple answer: it doesn't, or at least shouldn't. If adequate maternal health facilities like planned parenthood etc. are properly funded and distributed these disparities would not be so glaring between localities. Moreover, it would only be logical to apply the earliest point of viability as the lowest common denominator - thus mollifying Alito’s entire 2 page diatribe on the ethical quandaries of a woman’s location. 

In a stroke of legal tunnel vision, Alito further explains that “Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.” Considering the right to privacy firmly applies to the former, god forbid anyone make the mistake of thinking that they can implement their important personal decisions without government interference. What an unconstitutional thing that would be... Better yet, the court seems to think these decisions belong to the legislature and the body politic at large. “Casey necessarily declared a winning side. Those on the losing side — those who sought to advance the State’s interest in fetal life — could no longer seek to persuade their elected representatives to adopt policies consistent with their views.” Bear with me here, because this is a radical concept: but its almost as if those who disagree with abortion dont need to have one. Crazy right? 

As for the “state’s interest in fetal life”, I would like to know where the state's concerns for not yet extant life are rooted. Are they an unborn citizen of the state, thus protected by the state's laws? If so, do they automatically become a citizen of whatever state the pregnant mother happens to be in at any given moment? Would a divorced father have visiting rights to his pregnant ex-wife’s womb? Would a mother without a seat belt be culpable of child endangerment? Could anorexic mothers who suffer a still birth or miscarriage be charged with capital murder like parents who starved their child? Do any of these questions sound reasonable? If an unborn child is considered a citizen then these would all seem to be answered in the affirmative, along with a Pandora's box of other strange legal questions that would need to be explored. 

However, if the “state’s interest in fetal life” (which is left legally vague) is based in the religious mores of its citizens, then it should not be permissible under the separation of church and state implicit to the Establishment Clause. This appeared to be the case when Alabama Gov. Kay Ivey signed the country’s most stringent new abortion law, saying it was a “powerful testament” to the belief that “every life is a sacred gift from God.” Unfortunately, these same justices have been eroding the barriers to state endorsement of religion as well, which the recent ruling in favor of a public high school coach leading his team in post-game Christian prayers at the midfield after he refused to find an accommodation with the school board does. The irony is that some of these supposed “Originalist'' justices are some of the most willing to ignore the principles laid out in the Constitution when it suits their rulings. Albeit, no one should be surprised given that some equivocated their way onto the bench regarding their belief in Roe as “settled precedent”. 

In the search for reasons to repeal Roe, an entire section of the opinion is dedicated to the notion that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines”. However, the only citations provided are to minority opinions from cases that attempted to challenge the “undue burden” principle established by Casey through convoluted and tangential restrictions on abortion access (as well as a citation to Kavanaugh's personal gripes about the right to due process). The Dobbs opinion further states that “continued adherence to Casey’s unworkable “undue burden” test would undermine, not advance, the ‘evenhanded, predictable, and consistent development of legal principles.’” Yet the exact same could be said for the repeal of Roe. How can the abrupt nullification of 50 years of legal precedent and forthcoming surge of contradictory state legislation on abortion possibly advance the “evenhanded, predictable, and consistent development of legal principles”? Regardless of how the current bench answers that question, it is predictable that more precedent will be ‘evenhandedly’ repealed consistent with their revisionist tendencies - likely using similar lines of reasoning as follows: 

“Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by ‘liberty’... [we must] examine whether the right at issue in this case is rooted in our Nation’s history and tradition”... “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right… By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy.”

The central pillar of Alito's argument against stare decisis (i.e. the supremacy of precedent) is rooted in a fallacious analysis. By pointing to the past illegality of abortion while simultaneously ignoring the past illegality of many other things we now consider to be implicit rights for women, Alito uses an historical straw man as the justification for the rest of the ruling. That is unless he truly considers a “history and tradition” of oppression to be legal grounds for reimposition of those repressive codes. 

Until the 1970's all states provided exemptions for marital rape, but we aren't going to try and use “historical inquiries” to revive these depraved laws are we? 

This reflection on any historical right to abortion fails to look in the mirror and contextualize the subservient position of women held in society. Prior to 1848, a married woman couldn’t form contracts, control her own income, transfer or sell property or instigate a lawsuit. As the De Facto property of her husband, how could a woman ever have had those rights? In this byzantine approach, the majority opinion uses a straw man fallacy as a pretense to launch their attack on the Due Process clause of the 14th Amendment, thereby laying the faulty foundation of their reactionary ruling. By using a fallacy (even if not a legal fallacy) to justify the initial historical analysis from which their ruling emerged, the majority undermined the validity of their decision. 

Although certain pro-birth groups would like to attribute the low rate at which single mother’s choose adoption (1.7%) on access to abortion by comparing modern numbers to pre-1973 levels (19.3%), they ignore this aforementioned historical context just like Justice Alito - which I believe is fundamental to any conclusions one can draw about the “history and tradition” of our laws. Until the 1974 Fair Credit Act women were frequently barred from even obtaining credit cards, and the social stigma of having children out of wedlock was far more severe, i.e. being a single mother was almost impossible. Even today it is incredibly difficult - women denied a wanted abortion who have to carry an unwanted pregnancy to term have four times greater odds of living below the Federal Poverty Level, and are significantly more likely to stay in a relationship with abusive partners. 

Retroactively applying historical standards to a previously marginalized segment of society (as Alito’s foundational argument against stare decisis does) is almost as logical as if the Supreme Court overturned Brown vs. Board of Education by citing a widespread tradition of segregation in the U.S., pointing to Jim Crow laws, and claiming that “the authority to regulate [segregation] is returned to the people”. Although Alito wrote “abortion” in his opinion, that sounds equally absurd. 

After reading the majority opinion, one begins to wonder: does this lay the groundwork for ex-post-facto repeal of any newfound freedoms from the last century? It certainly seems to belie a set of reactionary views among the Justices that inherently threaten the fabric of our modern society. In attempts to assuage these concerns, Alito claims “the Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Yet, Clarence Thomas throws that straight out the window in his concurring opinion. Thomas takes aim at the rights to contraception, same sex mariage and concensual relations. Claiming that “because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents”. 

Lawrence O. Gostin, a Georgetown Law professor who specializes in public health, said it would be “easy to dismiss Thomas as a lone wolf” and to do so would be a dangerous mistake. Now that the majority on the court has destroyed the foundation on which Roe was built, Gostin warns, “the other rights may well come crumbling after.” Fundamentally, the Dobbs Decision is the first sundering crack in a reactionary assault on the Due Process clause of the 14th Amendment, and puts numerous other rights in line for the legal gallows. It is becoming more evident that the conservative supermajority on the Supreme Court views “precedent” as a four letter word. 

With the majority having invoked the “original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies”, it is time to take national legislative action to secure the right to abortion that a majority of our modern society has deemed fundamental. I don't wish to count weeks or propose the specifics of such federal legislation, but women deserve control of their reproductive autonomy. Period. And as the dissent best articulated: “If the majority is serious about its historical approach, then Griswold and its progeny are in the line of fire too.” Our Miranda Rights have already been curtailed be wronged")in the intervening weeks, and other cases of significance to our elections have also been added to the docket. If there is a democratic mandate post-midterms (i.e. a liberal majority in Congress after the elections despite the significant political headwinds) then it is imperative that legislation be passed to protect these rights. Likewise, anyone who values their liberties should vote like their rights depend on it - because they do.