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 Dobbs v. Jackson Women’s Health Organization, a challenge to Mississippi’s restrictive abortion law, is written in a register of contempt. Alito’s 2015 dissent in Obergefell v. Hodges, the case which recognized the right of same-sex couples to marry, complains that “those who cling to old beliefs” will be forced to “whisper their thoughts into the recesses of their homes”, lest they are subject to “backdoor” persecution by gays and lesbians and their supporters. What’s different about his opinion of Dobbs, which leaked to Politico last week, is that it’s not a dissent. It apparently aired in February as a draft “court opinion,” with four other justices joining Alito in overturning Roe v. Wade (decided in 1973) and its successor, Planned Parenthood v. Casey (1992). Alito calls Roe “extremely false” 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 grievance signature note may still be there, but it comes with an outburst of triumphalism.
Assuming Alito’s majority remains intact — and the final opinion resembles the draft — Dobbs will mark a change in the country that goes beyond abortion access. (The ruling was expected in late June.) Alito’s companions in the bid to evict Roe are reportedly Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, the latter three of whom were appointed by Donald Trump. Chief Justice John Roberts reportedly hoped a majority could be found to uphold Mississippi law while leaving Roe, in one form or another, in place. But his vote doesn’t matter. The ambitions of the five most conservative members of the Court 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 decision itself would not institute a ban, but it would give states nearly unlimited power to do so. More than twenty states already have measures in place that would drastically reduce access: “trigger laws,” designed to go into effect once Roe is overthrown; restrictions in state constitutions; or laws that predate Roe but have been left on the books. After the draft leaked, Louisiana lawmakers moved forward with a bill that would not only ban nearly all abortions, but define them as homicides. Sixteen states, meanwhile, have laws protecting the right to abortion. That should be cold comfort to people who live in those jurisdictions or have the financial means to travel. Their own rights will be conditional; they may feel that their choice of where to live is limited; 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 scope of Alito’s project 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. In the wake of the leak, people across the country have donated to funds that, for example, would help a person of limited means in Missouri, which has an onerous trigger law, pay for a plane ticket. to get an abortion in Massachusetts. These efforts echo the work of groups such as the Jane Collective, which helped women find reputable abortion providers in pre-Roe times. They’re a positive way to provide mutual support—for now. Some Missouri lawmakers, however, have pushed for a measure that would allow anyone who helps someone get an out-of-state abortion to be prosecuted. A Dobbs follow-up case could easily involve a pregnant person’s unlimited right to travel for care in another state. (Women who miscarry may also face judicial scrutiny.) In fact, Alito’s opinion offers a blueprint for a future finding that the Constitution not only does not protect abortion, but the forbidden.
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 in court. Its ability to function as a space for thoughtful deliberation and its air of legitimacy both seem diminished. Leakage may be more a symptom of this decline than a cause.
Roe has stood for almost fifty years, with the support of a majority of Americans, and yet, to hear Alito say so, it has no real place in the history or the law of the land or in any reasonable conception. of freedom. Roe and Casey are part of a long line of cases in which the Court, relying largely on the Fourteenth Amendment, has recognized certain unlisted rights that flow from the Constitution, even though they are not there. statements. A number of those cases involved the right to privacy, a notion that Alito denigrates. The Alito opinion, despite its claim to limit itself 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 comments surrounding the leak have described fears that these rights could be removed as overblown, but regardless of political will, Alito’s plan creates a legal route to do so. Some forms of contraception may be jeopardized by Dobbs himself: some opponents of reproductive rights place intrauterine devices in the category of “abortifacients,” alongside the morning after pill. We may be entering an era of less and less privacy.
Alito notes that “women are not without electoral or political power”. Indeed, one of the effects of his draft opinion would be that Americans who care about reproductive rights would be asked to devote a great deal of energy to taking their fight to all levels of government, perhaps more particularly during elections for state legislatures, where, for the time being, access to abortion will be distributed or denied. For many, it will be disheartening and deeply saddening to be asked to fight battles long thought won, when there are so many other battles to fight – child care, climate change, Trump. The light Dobbs sheds on everyone’s priorities could nonetheless be invigorating. Elections are worth it. It may be Alito’s court, but it’s not his America yet. ♦