WHY ROE WAS RIGHT

WHY ROE WAS RIGHT

In ninety-eight pages of attitude, alarm and anger, Samuel Alito has unburdened himself in a back-to-the-future effort to kill Roe v. Wade, the 1973 Supreme Court decision that forbade states from making all abortions illegal and allowed women and their doctors to make that decision for themselves.

Too bad.

Because . . .

Roe was right.

The United States Constitution was written in 1787 and ratified over the course of the next year plus. By June 1788, nine states had ratified, making the document binding on them according to its terms, and the rest joined at various times thereafter.  On May 29, 1790, Rhode Island became the last state to do so.

Ratification was no mean feat.  The so-called federalists in favor of the Constitution thought a reasonably powerful national government was needed to forestall the economic ruin inherent in a loose union of sovereign republics, each of which got to print their own money, impose tariffs on their own imports, and avoid collective responsibility for any Revolutionary War debts.  Their principal insight was that the liberty so many had fought and died for was in danger of becoming the anarchy of thirteen siblings unable to agree on anything other than the fact that they had removed the British.

For their part, the anti-federalists who opposed the Constitution deemed it an existential  threat to their liberty. They despised national power because in their minds it threatened local control.  They thought small-r republicanism could survive and prosper only  in small geographic units and did not buy James Madison's now-famous claim (in Federalist No. 10) that an extended or large republic would make faction less likely. 

To appease the anti-federalists, supporters in four states that ultimately voted for ratification also sent recommended amendments designed to protect citizens' rights.   In the first Congress,  James Madison proposed twelve of them and ten were adopted and became our Bill of Rights.

The word "privacy" does not appear in the Bill of Rights but there is no way to understand the Bill  without it.  This is especially so in the case of the first six amendments. The First says "Congress shall make no law" establishing religion, prohibiting its free exercise, or abridging  free speech, the press or the right to peaceably assemble and petition the government for redress.  The Second allows individuals to bear arms.  The Third prohibits the quartering of troops in homes without the homeowners' consent.  The Fourth establishes "the right of the people to be secure in their persons" and the Fifth and Sixth preclude arrest and imprisonment absent a grand jury indictment and trial by an impartial jury, the latter of which is preserved in civil cases by the Seventh while criminal penalties are categorically limited (no "excessive" bail or fines and no "cruel and unusual punishment") by the Eighth.  To be clear, the Ninth Amendment tells us that the enumerations in the Bill cannot be used to "deny or disparage other rights retained by the people" and the Tenth reserves unenumerated powers not just "to the States" but also "to the People".

In 1868, the Fourteenth Amendment to the Constitution was ratified.  It is one of the three Civil War Amendments.  Absent the war, it would not exist.  In fact, had the south not seceded, fought and lost a war, and then been reconstructed at the point of a gun and required to accept these amendments as a cost of re-admission, none of the Civil War Amendments would exist. 

But the south did.

And they do.  

And so the Fourteenth Amendment precludes any state from depriving anyone of liberty absent due process of law.

Given the Bill of Rights and the Fourteenth Amendment's due process clause, at least three features of these provisions make privacy -- the right to exercise one's own conscience and control one's own body --  an inherent right.  

First, all of the rights protected by the Bill are individual rights.  In fact, other than in the Second Amendment, none are made subservient to any collective or group goal or thought. Each individual can freely speak,  keep soldiers out of their homes, be secure "in their persons" and remain free absent indictment and jury trial.  And as part of "the people", each individual also retains unspecified rights which the (federal or state) law cannot "deny or disparage".

Second, some of the rights are so specific that they could not exist absent privacy.  The Third makes an owner's home his castle where no troops can live absent his permission.  The Fourth makes individuals secure "in their persons, houses, papers and effects" against unreasonable search and seizure.  And the Ninth literally warns that the list of rights is neither exclusive nor subject to infringement by the state.  They are retained by the people.

Third, the authors of the Constitution, Bill of Rights and Civil War Amendments were common lawyers versed in the language and categories of the common law.  As they understood it, that law evolves.  It is case based, fact specific, judge and jury made and over time accretes.  Had they wanted, both the Framers in 1787 and the authors of the Civil War Amendments in the 1860s could have frozen in time what was specifically protected.  They could have, for example, listed the specific punishments deemed cruel and unusual in the Eighth Amendment or the unwritten rights preserved to the people in the Ninth. They could have specifically defined the "liberty" that could not be deprived absent "due process" in the Fourteenth Amendment or precisely what they meant in guaranteeing every citizen equal protection of the law in that same provision.

They knew how to do all of this.

They did none of it.

In construing the Constitution and Bill of Rights in cases where neither document expressly mentions the claimed right in question, the Supreme Court has recurred over the course of the last eighty years or so to the notion that the Fourteenth Amendment's due process clause substantively protects "values 'implicit in the concept of ordered liberty'". This was the standard that Justice Harlan embraced in his concurring opinion in Griswold v. Connecticut, the 1965 Supreme Court case holding Connecticut's ban on birth control unconstitutional.  

In applying that standard, Justice Harlan said nothing about the history or tradition of birth control, either in the United States or elsewhere.  Instead, he perceived that liberty would be manifestly disordered by enforcing the statute.  As he put it: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptive? The very idea is repulsive to the notions of privacy surrounding the  marital relationship."

Since Griswold, some version of this concept of ordered liberty has been used by the Supreme Court  to overturn bans on selling or distributing contraception to unmarried adults (Eisenstadt v. Baird), sexual relations between consenting adults (Lawrence v. Kansas), gay and lesbian marriage (Obergefell v. Hodges), and, of course, abortion (Roe and thereafter Planned Parenthood v. Casey).  Each of these cases also involved rights not explicitly set forth in any Constitutional text and in each of them the enforcement schemes were manifestly disordered. Indeed, even before Griswold, the concept had provided at least a partial basis for overturning anti-miscegenation statutes (Loving v. Virginia).

Ten days ago, Politico obtained and published a copy of Justice Alito's proposed draft opinion overturning Roe v. Wade. Since then, Chief Justice Roberts has confirmed that the published draft is authentic but warned it is not the final opinion.  Nonetheless, in the days since Roberts' warning, so-called "conservatives close to the court" (three of them, actually) have reportedly told Politico that the majority support for Alito's draft is holding.  

On the right there has been a lot of sturm und drang condemning the leak and claims that opponents of Alito's draft must be the culprits. That, however, appears strained given Politico's latest sourcing. On the left, the suspicion is that conservatives leaked the draft to freeze the majority and inhibit anyone from changing their view and weakening what would be, if the draft holds, both a complete repudiation of Roe (and  Casey too) and complete deference to any state ban on abortion at any stage of pregnancy.  Indeed, it is at this stage difficult to imagine a more complete victory for abortion's opponents than Alito's draft opinion.

The flaws in Alito's draft are too numerous to catalogue in one place.

But here are three.

First, Alito got his law wrong.  

His opinion claims that no right to abortion can be found in the Constitution because the text says nothing about abortion and there is nothing in either our history or tradition that would require such a right.  He then claims that all the other cases affirming and enforcing a right to privacy (Griswold, Eisenstadt, Obergefell, Lawrence) are not in jeopardy because abortion is a special case.  But it isn't.  The reason those other cases apply is because in them, as in the case of abortion, there was no express textual reference to the claimed right but the Court nevertheless announced the right and forbade states from infringing it. There is no way those other cases survive Alito's draft if it becomes the actual law.

Alito's attempt to distinguish abortion from the other cases is also disingenuous in view of what he himself said in those other cases. In Obergefell and Lawrence he dissented and thus would have allowed states to ban gay and lesbian marriage and gay sex.  The basis for his dissents was that the Constitution did not expressly mention and could not be read to protect the asserted right.  He has run the same exact play in his draft overturning Roe.

Second, Alito got his history wrong.  

In his draft he claimed that "At common law, abortion . . . was regarded as unlawful . . . at all stages" of pregnancy.  This is false.  Until the 20th century, Americans did not even recognize abortions as occurring early in pregnancy, principally because they did not recognize pregnancy as a fact until quickening.  Moreover, the "history" that informed opposition to abortion after that point was largely misogynistic.  Indeed, the very expert Alito cites for his historic claim was a jurist, Matthew Hale, who burned witches and allowed husbands to rape their wives.  

Alito even distorted contemporary history. His draft states that, in 2018 when the Mississippi statute at issue passed, only six countries besides the United States "permitted non-therapeutic abortions upon demand after the 20th week of gestation". In fact, however, thirty-seven European countries allow abortions until at least 22 weeks upon request on broad grounds or based on the health of the mother.

Third, Alito got his politics wrong.

At two levels.

On the one hand, he claimed that the return of abortion to the states was no big deal because pregnancy is not the burden it once was.  As he put it, "leave for pregnancy and childbirth are now guaranteed by law in many cases" and "the costs of medical care associated with pregnancy are covered by insurance or government assistance".  In fact, however, less than a quarter of workers were eligible for paid family leave in 2021 and out-of-pocket costs for maternity care still average about $3,000 for those covered by employer-sponsored insurance.

On the other, he claimed that he was simply returning the decision on abortion to the people, to their elected representatives,  and removing it from unelected judges and therefore undemocratic courts.

This has been a standard conservative attack on Roe since 1973.

And it has been wrong since then.

To begin, the people, or at least the vast majority of them, support abortion rights. A year ago, Gallup reported that 80% of those asked said abortion should be legal in all or most cases.  This is not surprising. More than 90% of abortions are performed during the first trimester and there is no substantial opposition to that practice on a nationwide basis.  If anything, Roe is consistent with that consensus and Alito's draft is not.

Alito's flaw, and the flaw inherent in the claim of most abortion opponents on this point, is in assuming that state legislatures reflect the will of the people.  They do not.  They at best reflect the will of localized majorities on any specific issue and at worst reflect that localized view through whatever  distorted structures exist where any particular legislature operates.   Indeed, many if not most of the very states that will ban or restrict abortion  once Alito's draft is the law are also states that have recently passed laws suppressing turnout among Democratic (and likely pro-choice) voters and thus can hardly be deemed laboratories of democracy.

Alito was appointed by George W. Bush.  And of the four other Justices who appear to create the majority that supports his draft, three of them -- Gorsuch, Kavanaugh and Coney-Barrett -- were appointed by Donald Trump.

Bush II lost his first presidential election in 2000  by 500,000 votes.  And Trump lost his in 2016 by 2.6 million. Four of the five Justices about to overturn Roe  and deny the vast majority of Americans a right they have held for almost fifty years would not have gotten anywhere near the Supreme Court had Al Gore or Hillary Clinton been president.

The problem with abortion is not unelected judges.

It is unelected presidents.