20 Bold Takes on the Roe Draft Opinion

This is not an argument anyone is going to win. The loudest advocates on both sides are terrible representatives for their cause. When women are urged to “shout your abortion,” and when abortion becomes the subject of stand-up comedy routines, the attitude toward abortion seems ghoulish. Who could possibly be proud that they see no humanity at all in the images that science has made so painfully clear? When anti-abortion advocates speak in the most graphic terms about women “sucking babies out of the womb,” they show themselves without mercy. They are not considering the extremely human, complex, and often heartbreaking reasons behind women’s private decisions. The truth is that the best argument on each side is a damn good one, and until you acknowledge that fact, you aren’t speaking or even thinking honestly about the issue. You certainly aren’t going to convince anybody. Only the truth has the power to move.

The Bill of Rights is silent regarding abortion … If you’re asking, “How can a right be a right if it’s not mentioned in the Constitution?” [you] have to remember … when determining the reach of American liberty, the court has [also] traditionally asked whether the right “is deeply rooted in our history and tradition” and “whether it is essential to our Nation’s ‘scheme of ordered liberty.’”

The heart of Alito’s opinion is a painstaking historical analysis showing that that right to abortion has never been rooted in American law, much less “deeply rooted.” Instead, the legal history demonstrates centuries of abortion regulation. Here’s Alito summarizing the state of the law:

“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.”

As Alito notes, Roe vs. Wade simply got this history wrong, and if the Constitution is silent on the abortion right, and the legal history indicates that there was no right to abortion in American legal tradition, then the Constitution does not provide a right to an abortion.

Leaking a draft opinion of the Supreme Court destroys trust among the justices and undermines justice. The justices must be able to share their thoughts candidly—and vulnerably—with one another. They are judges deciding cases, not legislators writing laws that need public input.

The POLITICO exclusive did the nation a service by ignoring the magic fairy dust that envelops the court to take an overdue look at the court’s decision-making process. The story was all the more warranted because if we had a viable Congress, it would have sorted out the legality of abortion by now. Instead, we’ve shunted to the Supreme Court the job of legislating what the abortion law should be. Viewed from that angle, the POLITICO scoop is less an intrusion into the Supreme Court’s sanctified domain than it is an investigation into a piece of evolving legislation. Would Congress scream murder if one of its bills under consideration leaked to the press? Of course not. Its draft legislation gets aired all the time. So why the hubbub over the Alito draft? For one thing, it violates the court’s mania for secrecy, a mania that’s rational. The court has long feared that if the nation knew how its decisions come together—if its members dared to wear human faces, if it appeared as anything but a sacred tribunal—its decisions would carry less weight. It’s that easy to lose the mystique built up for centuries.

If this draft opinion becomes precedent of the court, the results will be catastrophic for women, particularly for women in the states that will immediately make abortion unlawful, and in those places, particularly for young women, poor women, and Black and brown women who will not have the time, resources, or ability to travel out of state. The court’s staggering lack of regard for its own legitimacy is exceeded only by its vicious disregard for the real consequences for real pregnant people who are 14 times more likely to die in childbirth than from terminating a pregnancy. The Mississippi law—the law this opinion is upholding—has no exception for rape or incest. We will immediately see a raft of bans that give rights to fathers, including sexual assailants, and punish with evermore cruelty and violence women who miscarry or do harm to their fetuses. The days of pretending that women’s health and safety were of paramount concern are over.

Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” That was the conclusion in the Yale Law Journal of pro-choice legal scholar John Hart Ely. “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” That’s liberal legal scholar Laurence Tribe. It’s near-consensus among legal scholars, even those who believe abortion should be legal, that Roe was a shoddy decision, not grounded in the Constitution. “You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result,” wrote pro-choice scholar Kermit Roosevelt in the Washington Post. “This is not surprising,” Roosevelt continued. “As constitutional argument, Roe is barely coherent.” The Constitution quite obviously does not protect abortion as a fundamental right. Roe relied on a “right of privacy” “emanating” from a “penumbra” cast by actually enumerated rights.

It was clearly motivated reasoning. Abortion has thus been protected from democracy by a ruling that everyone knows is garbage, motivated reasoning. I’ve collected here many pro-choice legal scholars saying how bad Roe was. Subject to scrutiny, Roe falls, and abortion defenders need to convince politicians to vote in order to strip unborn babies of any legal protections. This is why the pro-Roe side is relying on threats to protect Roe. Democrats promise that they will declare the Supreme Court illegitimate if it doesn’t uphold their decision. That directly implies that they believe the federal government and state courts should disregard any subsequent rulings from the court.

Ginsburg had been the leader of the ACLU’s Women’s Rights Project in the 1970s, and later an appeals court judge in the 1980s. She gave several speeches criticizing the court’s handling of the abortion issue. Roe vs. Wade “became and remains a storm center,” she said at the time, “because the court ventured too far in the change it ordered.”

Rather than resolve the issue, the court’s broad ruling “halted a political process that was moving” to liberalize abortion already, she said, and instead launched “the mobilization of the right-to-life movement” that changed American politics. She said the court would have been wiser to issue a brief ruling that struck down the “extreme statute before it,” referring to the Texas law dating to 1854 that made all abortions a crime, except for “saving the life of the mother.” There were no exceptions to protect the health of the pregnant woman or in cases of rape, incest or a severe fetal abnormality. Ginsburg suggested that if the states were given a hard nudge by the court, they would have revised and liberalized their abortion laws. She also argued for a different legal rationale, one based on equal rights for women rather than privacy.

You may reason, justices, that by joining Justice Alito’s opinion, you will merely be changing the terms on which abortion issues get decided in the United States. In reality, you will be lighting another cultural fire—one that took decades to get under control—in a country already ablaze over racial issues, school curriculums, criminal justice, election laws, sundry conspiracy theories and so on. And what will the effect be on the court itself? Here, again, you may be tempted to think that overturning Roe is an act of judicial modesty that puts abortion disputes in the hands of legislatures. Maybe—after 30 years of division and mayhem.

Yet the decision will also discredit the court as a steward of whatever is left of American steadiness and sanity, and as a bulwark against our fast-depleting respect for institutions and tradition. The fact that the draft of Justice Alito’s decision was leaked—which Chief Justice Roberts rightly described as an “egregious breach” of trust—is a foretaste of the kind of guerrilla warfare the court should expect going forward. And not just on abortion: A court that betrays the trust of Americans on an issue that affects so many, so personally, will lose their trust on every other issue as well. The word “conservative” encompasses many ideas and habits, none more important than prudence. Justices: Be prudent.

What Mr. Prudence seems to not know is that the potentiality of the change he deplores has been a vital source of stability. We worked through the system because we believed we could remedy a grave injustice one day. Asking us now to accept the injustice forever isn’t prudence.

Millions of women would never have been able to achieve things great and small without legal abortion. Many wouldn’t be in public life, wouldn’t be in office, wouldn’t have left an abuser, wouldn’t have met the love of their life, wouldn’t have had their beloved children. The sheer volume of all that would never have been created had women been forced into childbearing for the last 50 years is mind-boggling. The volume of what we’ve missed out on over the course of human history because women haven’t been in control of our own bodies is staggering.

Some women will be forced to give birth against their will. Some will travel to states where abortion remains legal; we can expect waiting times to increase as out-of-state patients pour in. Some will have illegal abortions. Some women will end up in prison. Some, facing pregnancy complications, will see necessary treatment postponed. Some will probably die.

As I’ve written before, post-Roe America will not look like pre-Roe America. Before Roe, women were rarely prosecuted for abortion, though they were sometimes threatened with prosecution to get them to testify against abortion providers. Now … we’ve had decades of anti-abortion laws defining fetuses as legal persons. Women accused of harming their fetuses by doing drugs or attempting suicide have already been arrested and in some cases imprisoned. Roe meant that fetal endangerment and fetal homicide laws didn’t apply to women having abortions. Once it’s gone, women who terminate their pregnancies are likely to be treated as killers … The best argument for legal abortion is often the real-world effect of abortion prohibitions. But by the time the backlash to such laws generates enough momentum for reform, many women’s lives will be ruined.

This [is] an interpretation that, if carried to its logical conclusion, would eradicate many of Americans’ other rights that the court has recognized based on so-called substantive due process concerns, among them the right to contraception, the right to gay marriage, and the decriminalization of gay sex. The end of legal abortion will not be where the court’s reactionaries stop. They aim to hurt, punish and narrow the lives of Americans in many more cruel and inventive ways.

The sudden illegality of abortion in most states come June will also create new legal landmines that will rapidly erode other individual rights. As women cross state borders for care, red states will try to limit interstate travel. As activists send abortion pills through the mail, aggressive searches and seizures of packages and personal belongings will become more frequent.

As women find ways to end their pregnancies, many of them will be arrested on criminal charges and some of them will be convicted. As doctors face patients with life-threatening pregnancy complications, many of them will not know what they are legally permitted to do, and in fear, they will let their patients die. Some of those who make the other choice, and help their patients live, will be arrested. All of this will create legal precedents that erode American freedom, making life more burdensome, more brutish and less safe.

The only thing this ruling would do is end the deference of the courts to abortion activists whenever a state wants to bring its abortion laws in line with most of Europe. Any law that could be seen as even a minor inconvenience to the abortion industry gets dragged to court within hours of passage. This ruling would only put pro-life politicians and activists on the same ground that abortion fanatics have occupied for years.

Democrats are worried because now they will actually have to convince voters to support their increasingly radical abortion policies. So they have to instill maximum fear.

Last year, based on a scenario in which 22 states banned abortion, Middlebury College economist Caitlin Knowles Myers projected that the annual number of abortions in the U.S. would fall by about 14 percent. In Texas, which banned the vast majority of abortions last September and avoided early judicial intervention by restricting enforcement to private civil actions, the net impact seems to have been a drop of about 10 percent.

Americans should keep those surprisingly modest estimates in mind as they try to predict what will happen after the Supreme Court overturns Roe v. Wade, as a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization suggests it will soon do.

While many states are expected to respond by imposing severe restrictions on abortion, most probably will not. And even in states that ban elective abortions, workarounds will mitigate the impact of those laws. Those options, which include traveling to clinics in other states and obtaining pills for self-induced abortions, will entail additional time, effort, cost, and in some cases legal risk. The new burdens will be prohibitive for many women, especially those with low incomes, inflexible work schedules, or pressing family responsibilities. But the net effect will not be nearly as dramatic as pro-life activists might hope or pro-choice activists might fear. “A post-Roe United States isn’t one in which abortion isn’t legal at all,” Myers observed in an interview with The New York Times. “It’s one in which there’s tremendous inequality in abortion access.”

One major difference between now and in the pre-Roe era is the now-widespread availability of abortion-inducing drugs. (The Food and Drug Administration even recently ruled that they can be prescribed by telemedicine.) These drugs make it much easier for women to secretly and safely self-induce abortion—as women in Texas are already doing.

Yet they also set up the possibility of a new war on drugs that induce abortion. Indeed, Texas recently made it a felony to provide abortion-inducing drugs (which are used for other purposes, too) for the purposes of inducing an abortion. “If you think states can actually prevent medical abortions, you must be unfamiliar with the war on drugs, which has failed for more than a century to stop Americans from obtaining politically disfavored intoxicants, even when they are illegal in every state,” notes Reason’s Jacob Sullum. But this doesn’t mean authorities won’t set up a dangerous, invasive, and wasteful system to try.

It was bizarre to watch liberals accuse the Court of acting “undemocratically” as they denounced the ability of “five unelected aristocrats”—in the words of Vox’s Ian Millhiser—to decide the question of abortion rights. Who do they think decided Roe in the first place?

… The only way Roe can be defended is through an explicit appeal to the virtues of the anti-democratic and anti-majoritarian principles enshrined in the Constitution: namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it. Few people like to admit that their preferred views depend upon a denial of the rights of the majority to decide, or that their position is steeped in anti-democratic values.

But there is and always has been a crucial role for such values in the proper functioning of the United States and especially the protection of minority rights. If you want to rant about the supremacy and sanctity of democracy and the evils of “unelected judges,” then you will necessarily end up on the side of Justice Alito.