The legal implications of the US Supreme Court’s draft anti-abortion decision

Supreme Court justice Samuel Alito’s draft ruling in Dobbs v. Jackson Women’s Health Organization, leaked and published on May 2 in Politico, would abolish the federal right to abortion for 175 million women in all states and US territories, overturning the landmark Roe v. Wade decision in 1973 that recognized abortion as a constitutional right.

The proposed ruling by Alito, who was appointed to the Supreme Court by president George W. Bush in 2005, purports to represent the decision of a majority of the nine justices. Chief Justice John Roberts has confirmed the authenticity of the draft, calling for an investigation to determine who leaked it.

Asserting that the prerogative to prohibit or regulate abortion is being “returned” to the state governments, Alito’s draft decision opens the floodgates not just for state and local laws banning abortion, but for laws prohibiting women from traveling to obtain abortions and laws that would jail doctors, nurses, friends, and family members who “aid or abet” an abortion. At least 13 states have already passed so-called “trigger laws,” designed to go into effect after the Supreme Court hands down its final decision.

Notwithstanding Alito’s invocation of states’ rights, the abolition of the federal constitutional right to abortion would remove the only legal obstacle to Congress passing a federal law banning abortion in all 50 states—not just criminalizing abortions in Florida and Texas, but in California and New York as well. Republican senate minority leader Mitch McConnell already indicated that such a law is “possible.”

The U.S Supreme Court building is seen at dusk in Washington on Oct. 22, 2021. [AP Photo/J. Scott Applewhite]

If the far-right majority on the Supreme Court were to stop there—at abolishing the federal constitutional right to abortion—that would already constitute the most reactionary decision since the Supreme Court’s 1944 Korematsu v. US decision upholding internment camps for Japanese Americans during the Second World War.

But Alito’s draft opinion goes much further. Echoing the phony “originalist” arguments of the late arch-reactionary Supreme Court justice Antonin Scalia—according to which the interpretation must be made according to its supposedly “original,” eighteenth century meaning—Alito’s draft decision goes on to deny the validity of “rights that are not mentioned in the Constitution.”

Virtually all modern civil rights are not “mentioned in the Constitution,” for the simple reason that modern society did not exist when the Bill of Rights was ratified in 1791. However limited and belated, the expansion of constitutional rights in the US—from the aftermath of the American Revolution and Civil War to the period of the Civil Rights movement—took the form of recognizing in the essential principles of the founding documents new implications for democratic rights in modern society.

Alito’s formulas provide a framework not just for dismantling the right to abortion, but for putting all modern civil rights on the chopping block.

1. Alito’s concept of “rights not mentioned in the Constitution.”

To appreciate the reactionary implications of the draft decision, it is necessary first and foremost to address its fundamentally fraudulent claim to “heed” some kind of original historical understanding of the Constitution. For all of Alito’s reverent invocations of “our founding document” and “this Nation’s history and tradition,” the draft decision turns the historical conceptions of democratic rights advanced in the American Revolution and Civil War upside-down.

“The Constitution makes no reference to abortion,” Alito writes. “The Court has long been reluctant to recognize rights not mentioned in the Constitution.” The premise is that rights only exist that are expressly referenced in the Constitution, or which are later (reluctantly) recognized by the Supreme Court. If the Constitution does not expressly mention a right such as abortion, according to Alito, then by default the right does not exist.

This is, in fact, precisely the opposite of the essential and “original” conception of the Constitution, which the American Revolutionaries designed to confer only those specifically enumerated powers on the government that are listed in the Constitution, reserving all rights by default to the people.

American revolutionary James Madison, who drafted the Bill of Rights, was initially opposed to the idea on the grounds that any list of rights would be inherently limiting, and that it would be better to proceed with the conception that all rights are retained by the people except to the extent powers were specifically and necessarily granted to the government.

The Ninth Amendment addressed this concern by providing: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Standing Alito’s logic on its feet, one could just as well argue that abortion is a right that is retained by the people because the Constitution does not expressly grant the government the power to ban it.

At the time of the American Revolution, as a matter of fact, voluntary abortion was generally not penalized before the “quickening,” or the time at which the fetus could be felt to move, after which killing the fetus fell into a vague and indeterminate category of criminal offense located somewhere between a misdemeanor and a murder. (Frederick Engels, in Socialism: Utopian and Scientific, remarked that jurists “cudgeled their brains in vain to discover a rational limit beyond which the killing of the child in its mother’s womb is murder.”)

The American revolutionaries did not alter this legal framework, which they inherited from English common law. It goes without saying that at the time, women did not enjoy anything resembling modern liberty. In addition to the roughly quarter-million women who were enslaved, together with those indentured and bound to labor for landlords and aristocrats, all but the wealthiest women lived under a form of domestic servitude, expected to perform household labor for their entire lives, shut indoors and excluded from public life.

While the revolution radically democratized American society and culture and laid the foundations for great advances in social progress, it would be more than a century before women could vote, and two centuries before the last vestiges of women’s inferior legal status were finally swept out of the legal system.

The authors of the Constitution and Bill of Rights obviously did not have the benefit of the tremendous advances in scientific and medical knowledge that would be made over the intervening centuries, not to mention all the subsequent advances in social practices and human culture in general. Modern medical procedures, and the religious fundamentalist movement to ban them, likewise did not exist.

All this underscores the tendentious, arbitrary, and illegitimate character of Alito’s method, which involves searching the writings of people living in the eighteenth and nineteenth centuries for the meaning of “liberty” for women in twenty-first century American society.

In 1876, for example, eight years after the ratification of the Fourteenth Amendment, chief justice Morrison Waite denied a woman’s application to appear before the Supreme Court, stating that “none but men are permitted to practice before it as attorneys and counselors.” He continued: “This is in accordance with immemorial usage in England, and the law and practice in all the States.” Applying Alito’s method, this historical episode could be cited as definitive proof that the constitutional guarantee of “liberty” was never “intended” to abolish the inferior legal status of women.

Refuting Alito’s phony brand of “originalism” requires only a citation to American revolutionary Thomas Jefferson. In a letter in 1816, Jefferson remarked: “Some men look at Constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human …”

Laws and institutions, Jefferson continued, “must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace … we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

Alito’s “originalism,” while it reverently invokes the “founders,” in fact tramples on the memories of the American revolutionaries, whom he conscripts into the roles of “barbarous ancestors,” whose dead hands would block all progress and enlightenment for centuries to come.

2. The legal significance of the Fourteenth Amendment’s guarantee of “liberty”

Alito’s method lacks roots in the Supreme Court’s own traditions of constitutional interpretation.

The police in their modern form, for example, did not exist at the time the Constitution was ratified, and so the word “police” does not appear anywhere in the text of the Constitution or the 1791 Bill of Rights. No powers are expressly conferred on police officers, and no rights are recognized against police officers, for the simple reason that the modern institution of the police—SWAT teams, batons, and tasers—did not exist at the end of the eighteenth century. For the same obvious reason, the Constitution does not mention wiretapping and electronic surveillance.

The police appeared on stage later in American history, in response to the emergence of a powerful labor movement in the late nineteenth and early twentieth centuries. The Supreme Court belatedly (“reluctantly,” to use Alito’s word) recognized rights against the police in the period following their appearance on the historical stage. This process culminated in the right to the famous Miranda warning (“you have a right to remain silent, you have a right to an attorney”) in 1966, together with cases establishing the right against “excessive force,” false arrests, and frame-ups by police in a series of decisions from the 1960s to the 1980s.

None of these rights are expressly and specifically “enumerated” in the Constitution, but notwithstanding this fact, the Supreme Courts of earlier decades recognized them as implicit in the fundamental democratic guarantees contained in the Bill of Rights and Civil War Amendments.

At their best, this category of Supreme Court decisions recognizes the founding documents as containing essential democratic principles that each generation must put into effect under new and unforeseen circumstances, following advances in scientific knowledge and in light of historical experience.

The high-water mark of these conceptions was the period of civil rights reforms lasting from roughly the 1940s to the 1970s, including the period during which Earl Warren, appointed by president Dwight Eisenhower, served as chief justice from 1953 to 1969, known as the Warren Court Era.

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