How Alito’s Draft Opinion on Abortion Rights Would Change America

Those who have watched Samuel Alito during his sixteen years as a Supreme Court Justice will not have been surprised to learn that his draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, a challenge to a restrictive Mississippi abortion law, is written in a register of scorn. Alito’s 2015 dissent in Obergefell v. Hodges, the case that recognized the right of same-sex couples to marry, complains that “those who cling to old beliefs” will be forced to “whisper their thoughts in the recesses of their homes,” lest they be subject to “turn-about” persecution by gays and lesbians and their sympathizers. What’s different about his Dobbs opinion, which was leaked to Politico last week, though, is that it’s not a dissent. It was, apparently, circulated in February as the draft “opinion of the court,” with four other Justices joining Alito to overturn Roe v. Wade (decided in 1973) and its successor, Planned Parenthood v. Casey (1992). Alito calls Roe “egregiously wrong” and writes that there is no constitutional right to seek an abortion—not at any stage, in any pregnancy, or for any reason he acknowledges. His signature note of grievance may still be present, but it is accompanied by a blast of triumphalism.

Assuming that Alito’s majority stays intact—and that the final opinion resembles the draft—Dobbs will mark a shift in the country that goes beyond access to abortion. (The decision had been expected in late June.) Alito’s companions in aiming to throw out Roe are, it seems, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the last three of whom were nominated by Donald Trump. Chief Justice John Roberts had reportedly hoped that a majority could be found to uphold the Mississippi law while leaving Roe, in some form, in place. But his vote hardly matters. The ambitions of the Court’s five most conservative members seem unrestrained.

The most immediate effect of Dobbs, if the draft opinion holds, will be that tens of millions of women will abruptly lose access to abortion. The ruling itself would not institute a ban, but it would give states almost boundless power to do so. More than twenty states already have measures in place that would severely curtail access: “trigger laws,” designed to go into effect once Roe is overturned; restrictions in state constitutions; or laws that predate Roe but were left on the books. After the draft was leaked, Louisiana legislators moved forward with a bill that would not only ban almost all abortions but would define them as homicides. Sixteen states, meanwhile, have laws protecting abortion rights. This should be cold comfort to people who live in those jurisdictions or who have the financial means to travel. Their own rights will be conditional; they may feel that their choice of where to live is constrained; their country will be more divided and unequal than it is now. But the burden will fall most heavily on Americans with less money.

One way to illustrate the reach of Alito’s draft is to look at what the options for defending reproductive rights would be in its wake. Congress could, in theory, enact protections, although the filibuster is a barrier. But a Republican-controlled Congress could also, with the help of a Republican President, introduce a nationwide ban. Following the leak, people around the country donated to funds that, for example, would help someone of limited means in Missouri, which has an onerous trigger law, pay for a plane ticket to obtain an abortion in Massachusetts. These efforts echo the work of groups such as the Jane Collective, which helped women find reputable abortion providers during the pre-Roe era. They are a positive means of providing mutual support—for now. Some Missouri legislators, however, have pushed for a measure that would allow anyone who helps someone obtain an out-of-state abortion to be sued. A follow-up case to Dobbs could easily involve a pregnant person’s unrestricted right to travel to get care in another state. (Women who have miscarriages may be exposed to legal scrutiny, too.) In fact, Alito’s opinion offers a blueprint for a future finding that the Constitution not only doesn’t protect abortion but prohibits it.

The extremism of the draft has given rise to theories about who leaked it and why—to prevent further edits or to force them? There will be an investigation, but what seems clear is that there has been a breakdown at the Court. Its ability to function as a space for thoughtful deliberations and its air of legitimacy both seem diminished. The leak may be more a symptom of that decline than a cause.

Roe has held for nearly fifty years, with the support of a majority of Americans, and yet, to hear Alito tell it, it has no real place in the country’s history or law or in any reasonable concept of liberty. Roe and Casey are part of a long series of cases in which the Court, relying in large part on the Fourteenth Amendment, has recognized certain unenumerated rights that derive from the Constitution, even if they are not spelled out there. A number of those cases have involved a right to privacy—a notion that Alito disparages. The Alito opinion, despite its claim to be limited to abortion, thus casts doubt on Obergefell and even on Griswold v. Connecticut, the 1965 case that recognized the right of married couples to obtain contraception. Some commentary surrounding the leak has portrayed fears that these rights could be taken away as overblown, but, whatever the political will, the Alito draft creates a legal pathway to do so. Certain forms of contraception may be imperilled by Dobbs itself: some opponents of reproductive rights put intrauterine devices in the category of “abortifacients,” alongside the morning-after pill. We may be entering an increasingly un-private era.

Alito notes that “women are not without electoral or political power.” Indeed, an effect of his draft opinion would be that Americans who care about reproductive rights will be asked to expend a great deal of energy carrying their fight to every level of government, perhaps most especially in elections for state legislatures, which is where, for the immediate future, access to abortion will be doled out or withheld. For many, it will be dispiriting and deeply sad to be asked to wage battles long thought won, when there are so many other struggles to be fought—child care, climate change, Trump. The light that Dobbs casts on each party’s priorities could nonetheless be bracing. Elections are worth the effort. It may be Alito’s Court, but it’s not yet his America. ♦

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