The shock over the leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization has left many asking how the Supreme Court could so easily overturn a near 50 year precedent protecting women’s legal right to abortion.
Of course, anyone following the direction of the court in recent years is not entirely surprised by the draft opinion. The court has increasingly prioritized religious rights over other rights and public health, including in cases focused on LGBTQ+ rights, women’s health, and COVID-19 restrictions. The starkness of the textualist and originalist approach employed by Alito in the draft opinion (and apparently sanctioned by the conservative majority of the Court), belies a dark future for women’s rights and health.
Indeed, the opinion paints the realities of women’s lives in 2022 through rose-colored glasses—when it mentions them at all. To reach its apparent goal of overturning the two major abortion precedents, Roe v. Wade and Planned Parenthood v. Casey, this new Supreme Court treats women’s lives and health as mere abstractions
Women’s Lives In 2022 Through Rose-Colored Glasses
Alito spends much of the opinion arguing that the word, “abortion” is not in the Constitution and that it is not “deeply rooted in the Nation’s history.” But Alito’s textualist and originalist approach to abortion not only obscures the legal and social context of women’s lives in the past, it entirely decontextualizes their lives today.
Indeed, he makes almost no attempt to balance the interests of women–their health, mental health, economic security, and caretaking obligations–with the interests of the state in restricting or banning abortion. He devotes less than two pages of the 67 page draft opinion to the effect of banning abortion on women’s lives. In a few sentences, he dismisses the Roe and Casey courts’ consideration of women’s autonomy and equal opportunity and quickly concludes that in 2022, women are empowered enough that if they experience an unwanted pregnancy, they needn’t worry.
His claims are these: Women are no longer ostracized as single-mothers, there are legal protections against pregnancy discrimination in the workplace, they have access to health insurance while pregnant, and they are eligible for parental leave “in many cases.” The reality of women’s lives in 2022 is vastly different than the one Alito depicts.
Alito’s cheery scenario completely erases the facts about pregnancy and motherhood in the U.S. The U.S. has the highest rate of maternal mortality among wealthy countries, double the rate of its closest peers. The rate for Black women is three times that of white women. It is far from certain that all women have access to insurance during pregnancy. Low-income women and women of color are most likely to be uninsured during pregnancy.
The U.S. is also the only developed country and only one of 6 in the world that does not guarantee paid maternity leave. Childcare is prohibitively expensive for many families. The opinion is devoid of any social, racial and economic context.
The status of women’s reproductive health in the U.S. and the gross racial and socioeconomic health disparities among women receive no attention at all. Alito’s only mention of race is to suggest, in a footnote, that the practice of abortion derives from the eugenics movement which sought to sterilize women of color as a means to reduce the population of Black people, a claim made by his colleague, Justice Clarence Thomas in his concurring opinion in Box v. Planned Parenthood.
The claim has been widely rebutted by historians and utterly confuses autonomous decision-making by women with state sanctioned forced sterilization. What is more, this line of reasoning overlooks persistently high rates of Black maternal morbidity and mortality, a public health and human rights crisis that has largely been ignored by policymakers for decades.
Research shows that access to safe abortion reduces maternal mortality. A 2019 study in the American Journal of Preventive Medicine shows that states with the most restrictive abortion laws and policies have significantly higher maternal mortality. Other studies of the link between abortion access and maternal mortality have demonstrated a similar association. Because a majority of Black women live in the South and Southern states are most likely to further restrict or ban abortion if the Court overturns Roe and Casey, the Court’s decision is likely to exacerbate the Black maternal health crisis.
”To Participate Equally In The Economic And Social Life Of The Nation”
Alito excoriates the 1973 Roe court for its “fact-finding,” including its citation of the amicus briefs submitted by the American Medical Association and the American Public Health Association about the harms of illegal abortion on women’s health and well-being. To Alito, it is not the role of the court to engage in this kind of “fact-finding” because interpretation of the Constitution should not involve consideration of the effect of law on real people. Entertaining the complexities of women’s lives would make legal analysis and reasoning much too messy for the Court.
Indeed, Alito asserts that the Roe court’s consideration of two factors—“the relative weights of the respective interests involved” and the “demands of the profound problems of the present day”—represented legislating, not judicial interpretation. So, should no medical, public health or social science evidence about the effect of access to abortion on women’s health and well-being ever be considered by a court?
Similarly, Alito rejects, as completely unworkable, the Casey court’s “undue burden” standard, which it defined as policies that placed a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” But it is clear from the Dobbs opinion that he cannot fathom any burden so great that it would reduce the state’s power to restrict or ban abortion. He derides the Roe and Casey courts for balancing women’s liberty interest in controlling their reproductive lives with the interest in “potential life.”
Abortion, he argues, is different from other interests the Court has deemed to be liberty interests because many people believe it constitutes taking the life of an “unborn human being”; the Court, therefore, should not weigh in. Following this line of thinking, one would have to conclude that women have no interest so substantial that it would outweigh state power to restrict or prohibit access to abortion.
He also wholeheartedly rejects the notion of reliance put forth by the Casey court when it asserted that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Rather than entertain such a reliance interest, Alito asserts that it “is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.”
So, if courts shouldn’t be addressing complexities, who should? Women, Alito asserts, have great political power; if they want to have legal abortion, they should simply elect pro-choice candidates. He points to Mississippi (the state that is testing the constitutionality of pre-viability abortions) as an example of women’s enormous political power, citing the fact that in the 2020 election women cast more ballots than did men.
Obscured by this rosy picture of American democracy are some uncomfortable realities. Mississippi is one of six states in the U.S. that does not allow no excuse in-person or mail-in voting. Women make up just 14% of the Mississippi state legislature, while they are 52% of the population.
Now, place those disparities in relief against the realities of Mississippi women’s reproductive health and experiences of motherhood. They are atrocious: In 2019, nearly a quarter of all births in Mississippi are to parents who live in maternal health care deserts; nearly half of Medicaid covered mothers reported no postpartum visit. Children fare no better. Mississippi has the country’s highest infant mortality rate and the highest poverty rate in the nation, with 28 percent of children living in poverty.
The Future Of Women’s Health And Equality
Alito’s opinion reveals not just the Court’s readiness to overturn nearly 50 years of the Constitutional protection for legal abortion. It gives the Court permission to distance itself from any of the consequences its decisions have for the lives of real people, especially the most disenfranchised and marginalized.
At oral argument, Justice Brett Kavanaugh suggested that the Court must use “scrupulous neutrality” in the abortion debate to avoid having to “pick sides.” In essence, this court wishes to wash its hands of the issue and let the chips fall where they may. At the end of the opinion, Alito matter-of-factly states, “we do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law…”
In other words, what this decision will mean for women’s health, safety, autonomy, and equal opportunity and for the well-being of their children is of no consequence to this court.
Alito’s texualist and originalist approach to constitutional interpretation presumes that there is one correct interpretation and that courts should play no role in considering the practical implications of their decisions.
But courts, including the Supreme Court, consider the practical and social impact of their decisions all the time. As constitutional scholar Melissa Murray has pointed out, in overruling the legal doctrine of “separate but equal,” the Court in Brown v. Board of Education considered a broad range of social science evidence regarding the effects of racial segregation on educational opportunity and on Black children’s psychological health. The draft opinion’s refusal to consider the practical effects of their decision on women underscores the conservative capture of the court and further deepens the loss of Justice Ruth Bader Ginsburg.
Ginsburg, mostly in dissent, consistently reminded the court’s majority of the realities of women’s daily lives and health, often citing medical and public health evidence. To Ginsburg, abstraction and exclusion of women’s lives in the name of neutrality has long been used to obscure injustice. She saw that the Court’s chipping away at Roe by sanctioning state restrictions on abortion was most harmful to low-income women.
In a 2019 interview with the BBC, she warned that women and their allies should care about abortion rights the way they did in 1973, lest those rights be completely eroded. With the leak of Alito’s draft opinion and the likelihood that the Court will overturn Roe and Casey in June, it is well past time for the majority of Americans who support legalized abortion to take her admonition seriously.