Alito’s folly is an offense to women and a warning to others of the dangers of an “Extreme Court”

The leak of Justice Alito’s draft opinion scuttling Roe v. Wade is as much a solution in search of a problem as groundbreaking jurisprudence. The notes Alito applies to his reasoning sound hollow and out of tune with both history and the landmark decision carved out by the Court in its 1973 landmark ruling that found an inherent right to privacy within the 14th Amendment that afforded women control of their reproductive processes. They argued that women singularly bear a hyper burden of responsibility in choosing to bring a new life into the world based upon their own circumstances, their own health, and the health of the baby. Their commitment to reproduction includes both emotional and medical considerations unlike those of their male partner. Lawrence Hurley describes Alito’s thinking in his article “Alito’s abortion history lesson in dispute”:

His (Alito’s) reasoning was that a right to abortion was not “deeply rooted in this nation’s history.” Alito relied upon a reading of state laws on the books in 1868 when the U.S. Constitution’s 14th Amendment, which among other things protects due process rights, took effect in the immediate aftermath of the U.S. Civil War and the end of slavery.

— Hurley, Reuters, May 6, 2022

Alito fails to mention that there were other issues that apply here that were “deeply rooted” in the nation’s history, small matters like slavery and women’s rights in general, including the right to vote. While Court originalists love to embrace the circumscribed rights and privileges enumerated in the Constitution, they are far more lenient in acknowledging the document’s shortcomings and the 18th-century thinking of its authors. Blacks were to be counted, like possessions, as three-fifths of a person for the purposes of representation, while only white male landowners were considered worthy of the privilege of voting. So along with being unable to foresee the impact of their decisions on an evolving nation, they were blind to the consequences of their limited judgment which introduced racism and misogyny into their experiment in governance. To their credit, the Founders provided for a living ruling document with their inclusion of the Bill of Rights and the amendment process.

Justice Alito’s reading of history and historical precedent is one that is heavily dependent upon his own personal and religious biases. Hurley notes the opinion of historian David Garrow who points out that history simply does not support Alito’s reading of it, He states that the practical reality in the colonial period and beyond was that abortions were commonplace and…

…even in states where it was banned when the 14th Amendment was added and that criminal prosecutions were rare.

“If you wanted to argue that abortion is deeply rooted in American history you don’t argue about state statutes. You argue about the evidence of demographic reality.”

— Hurley, Reuters, May 6, 2022

Alito’s draft relies upon a rather simplistic and unwarranted requirement that for abortion rights to be protected under the fourteenth amendment, they would have to be somehow enumerated in the nation’s founding document. While many of the rights we now enjoy were mentioned in a document written before telephones and air travel, the reasoning used by Alito in his draft would call into question many other rights we take for granted. His reading of the Constitution makes our founding document a cudgel to be used to maintain a white, Christian, male-dominant vision for America. An America bound to the past in this way could only evolve through the mechanisms of legislation. The Founders’ understood that certain rights were inherent and didn’t require enumeration, but that were self-evident. Their view was based on individual liberties which retained unalienable rights. The theory vitiated the European model they were separating from which was mired in religious orthodoxy and status to provide privileges to the few at the expense of the many. The authors of the Constitution, in fact, turned the existing theories of government on their heads. The European nations that the Founders broke from drew their authority for governing not from the people, but from God-the divine right of kings, a belief that asserts that the king is subject only to the authority of a god. Alito’s reading of the Constitution as somehow reflective of his own religious beliefs is a vestige of another time — a time that predates our founding.

Alito’s argument returns to a discarded doctrine that suggests that rights are conferred and not innate. Those rights which the Constitution deemed inviolable are not gifted, but ours. They do not ask us to bend at the knee to governmental authority to exercise them. Alito aspires to revert to feudal biases and to deny those rights that were finally recognized through strife and sometimes bitter campaigns for voting rights and civil rights that were suppressed under the cover of law and custom.

The evisceration of the 14th amendment that is at the heart of Alito’s anti-democratic draft is essential to the ruling’s legal argument. The amendment was written in the aftermath of the Civil War and ratified in 1868 to correct so many of the errors inherent in the original Constitution. It states quite simply that the federal government is the ultimate protector of individual rights that cannot be ignored by the states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

— Section I, Fourteenth Amendment of the Constitution

If the Court were to adopt Alito’s draft women’s reproductive rights would be subject to the geography of their residence and the states, rather than a woman’s own conscience, the opinions of her physician, or the necessities of her circumstances. To force women to carry an infant to term regardless of their wishes relegates them, much like blacks in the originally flawed document, as a possession of the state and without individual rights. Nowhere in the Constitution do the Founders ever consider a fetus as having rights to be protected from its mother. Alito’s deep dive into a historical premise neglects the obvious right of women to control their own bodies. There is no comparable restriction imposed upon males in our culture.

The truth is that the right of women to choose is basic to their status as citizens under the 14th Amendment. The truth is that women have taken great care in exerting their right to an abortion and that this ruling comes at a time when abortions are in a steady decline since and that they should be “safe, legal, and rare.” Should it adopt Alito’s draft as the ruling of the Court, the highest court in the land will ensure that women’s lives will be in jeopardy and that abortions will become a luxury for the wealthy and powerful. Statistics tell us that women who seek abortions are generally young, poor, and unmarried. The incidence of rape and incest-related pregnancies account for less than 1% of all abortions, yet Alito would even forego the inclusion of an exception in these rare cases based upon his extremist view which is informed by religion and not law. In a nation in which nearly 80% of the population believe that abortions should be legal in cases of rape or incest, the Court may soon decide that the government has a prurient interest in a woman’s choice to bear a child under even these most exigent circumstances. According to Mary Ziegler, a professor at Florida State University College of Law who specializes in the legal history of reproduction, this extremist view suggests a deeper, darker political goal:

“There was consensus that politically if you didn’t include exceptions for rape and incest, politicians wouldn’t go for it, voters wouldn’t like it and the Supreme Court wouldn’t tolerate it. What you see now is pro-life groups saying it’s no longer a political necessity and we can be opposed to all abortions and we want the GOP to be with us…

Pro-choice groups see rape and incest exceptions as the canary in the coal mine when it comes to extremism. They argue … if you’re willing to abandon these exceptions, then there’s no saying when you’re going to stop.”

The fact that Alito’s draft was leaked by the Court already suggests an emboldened wing of the Justices has their eyes on other individual rights long-considered fair game to culture warriors on the right. In effect, his gambit is a subtle attempt to repeal Section 1 of the 14th Amendment. It is their bold play to maintain power and influence in a nation that will soon find them in the minority both in numbers and in thought.

Originally published at on May 11, 2022.



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