The End of Roe? A Historian Interprets the Alito Draft

On Tuesday, one of my constitutional history students emailed me a link to the Politico article with a note “you were right,” referring to my prediction earlier in the semester that the Supreme Court would strike down Roe v. Wade (1973). It is little comfort to have predicted (as many others also did), a potential ruling that weaponizes the worst of our nation’s collective past while ignoring many of the lessons history has to teach us. What I offer here is not a comprehensive analysis of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, but three different perspectives on the draft opinion to overturn Roe v. Wade, grounded in three of the different areas in which I teach. While the human rights implications of this draft are far reaching, the hints it provides into the court’s evolving attitudes towards academic expertise are also alarming.

Constitutional History

Justice Samuel Alito’s main argument for overturning Roe v. Wade is that rights not clearly granted in the past, or at least by the time of the ratification of the 14th amendment in 1868, can never be found in the US Constitution unless they were explicitly named. Justice Alito revisits this point and this 1868 date repeatedly in his draft opinion. This argument is disingenuous; as he acknowledges in the draft, under both English Common Law and early American law, abortion prior to quickening was generally permissible.[1] Moreover, his position that rights must have existed in a time when only white men could vote portends disaster for broad swaths of the American public.

First, by essentially rejecting stare decisis, the long-held principle that unless grievously wrong, prior court rulings should be respected due to the social stability settled law provides, the opinion introduces an instability to the law not seen in the previous century.[2] Second, the argument strongly suggests that unless over-ruled by a constitutional amendment, rights such as inter-racial marriage, same-sex marriage, and contraception are subject to the whims of legislative bodies; indeed, in the past year senators have suggested cases acknowledging all of these rights be over-turned.[3] While Alito does state that the opinion should not be “understood to cast doubts on precedents that do not involve abortion,” it is difficult to see why that statement, rather than the bulk of the opinion, would be considered by the court in deciding in future related cases. In fact, as historian Heather Cox Richardson argued, the broadening of the ruling far beyond the scope of the original makes this opinion most akin to the court’s worst decision, Dred Scott v. Sanford (1857).

Religious History

The extent to which religion (evangelicalism in particular) has played a role in attempts to reverse Roe over the past four decades tempts us to conclude that religion, in particular Christianity, has always been opposed to abortion. Nothing could be further from the truth. While the story of Roman Catholicism’s relationship to abortion is a complicated one, it’s clear that for several centuries, the church found it permissible; Thomas of Aquinas considered it a sin only if used to conceal pre-marital or extra-marital sex and St. Augustine considered it permissible before quickening. Traditional Jewish law permits abortion, or in some cases requires it, when the health (including psychological well-being) or life of the mother is at risk.[4]

Even today, many American faiths support abortion rights. Both Reformed and Conservative Judaism, the Unitarian Universalists, and others support abortion with few or no limits, while other groups, including the Episcopal Church and the United Methodist Church, support it with some limitations. (Click here for a breakdown of positions by religious organization.) Despite the Roman Catholic Church’s official position opposing abortion, the majority of individual American Catholics support at least some abortion rights and hold similar views to general American public. (Click here for more information.) And as of this writing the Satanic Temple (a humanist, non-deist religion, which holds as a fundamental tenant that “one’s body is inviolable, subject to one’s own will alone”) has announced its intention to file suit against Texas’s so-called “heartbeat bill” under the Religious Freedom Restoration Act.

Women’s History

Three observations seem useful here—the first, noted by many, is the contempt this ruling shows for women. It overlooks the painful reality that women could not vote at the time of the ratification of the 14th Amendment. Yet it claims that women should have no relief from the court in this matter precisely because today women not only can vote but do so in greater numbers than men. This logic makes forced pregnancy not only a punishment for women’s sexual activities, but for their exercise of their nineteenth amendment rights.

At no point does the opinion display any concern for the wellbeing of the pregnant woman, nor does it address the reality that pregnancy imposes significantly higher risks of health problems and death than legal abortion. Alito’s draft opinion is written in response to a Mississippi Law banning nearly all abortions after 15 weeks. The absence in the draft of exemptions to protect the health or the life of the pregnant woman, outside of an immediate medical emergency, makes the opinion’s disregard for women’s wellbeing even more disturbing. The repeated references in the draft opinion to taking a life or potential life suggests that the landmark birth control decision, Griswold v. Connecticut (1965) is in peril—in part because many opponents of abortion, including some in public office, insist that oral contraception is akin to abortion.

Finally, neither the law nor the opinion makes any mention of an exception in the case of rape or incest. This should remind us that it was not until 1976 that Nebraska became the first state to ban marital rape and that it took 17 additional years before all US states imposed some degree of restrictions on marital rape exemptions. The right to be free from sexual assault by one’s husband is clearly less “deeply rooted in our history or traditions” than the right to abortion this opinion would remove, underlining the serious consequences that could come from a restriction of rights to those held in the long past or explicitly named in a constitutional amendment.[5]

Regardless of whether or not it stands, this draft opinion should set off alarm bells for all historians and educators due to the insight it offers into the court’s thinking. On an individual note, it is telling that Alito cites male philosopher Isaiah Berlin (1909-1997) while ignoring the many female scholars who have written extensively on the history of abortion in the United States—for example, the excellent work of Linda Greenhouse and Reva Siegel in Before Roe v. Wade.  More broadly, laced throughout the draft are rejections of Amici Curiae briefs authored by the American Historical Association and the Organization of American Historians in both Dobbs v. Jackson and in past rulings. Coupled with a rejection of the recommendations of public health officials in recent cases involving COVID-19 measures and of medical science in this and other abortion cases, Alito’s draft suggests an accelerating and alarming rejection of professional and academic expertise as relevant to the court’s decisions and a belief that the justices are better judges of history than those who have dedicated our lives to studying the past.

[1] For an interesting discussion of abortion in Puritan New England and additional references, see Cornelia Hughes Dayton, “Taking the Trade: Abortion and Gender Relations in an Eighteenth-Century New England Village,” The William and Mary Quarterly 48, no. 1 (1991): 19–49.

[2] Technically, the draft opinion does not reject the doctrine entirely, but so undermines it as to render it essentially non-existent.

[3] Senator M. Braun (R-Ind.) has questioned the right to inter-racial marriage, Senator Marsha Blackburn (R-Tenn.) the right to use contraception, and Senator John Coryn (R-Tex) the right to same-sex marriage.

[4] See “Abortion and Catholic thought. The little-known history,” Conscience, 1996 Autumn;17(3):2-5. PMID: 12178868.

[5] Justice Samuel Alito, quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997), in his draft opinion regarding Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et. Al., Petitioners v. Jackson Women’s Health Organization, et. al., February 10, 2022.

Featured image: Photo by author, May 5, 2022. Permission required to reproduce.

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