May 6, 2022
Monday evening, while some of us were on Vogue.com, indulging in the opulent escapism of the Met Gala, Politico dropped the seismic bombshell of Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health. The release revealed that a 5-4 majority of the Court was poised to overturn Roe v.Wade and strip women of their bodily autonomy, a right that has been guaranteed to us for nearly fifty years.
The arrogance and contempt on display in Alito’s draft is stunning. Alito’s absolutist reasoning is based on the shaky foundation that the right to abortion is not found anywhere in the Constitution, conveniently ignoring the text of the Ninth Amendment which states in full, “the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” Alito states that the applicable Constitutional provision is the due process clause of the Fourteenth Amendment and invents a new test holding that the Fourteenth Amendment only protects those rights “deeply rooted in this Nation’s history,” and “implicit in the concept of ordered liberty,” (Source: Draft Majority Opinion of Alito, J., citing Washington v. Glucksberg, 521 U.S. 702, 721, (1997), Politico.com, 5/2/22).
By ignoring the Ninth Amendment and devising a new test that limits Constitutional rights to those enumerated specifically in the Constitution as they were understood at the time of the founding, Alito opens the door to the denial of any right not namechecked in 1791. Of course, that is the point. Ultra-conservatives have long hated the concept of “penumbral rights,” articulated in Griswold v. Connecticut, (S.Ct. 1965), the case which established the Constitutional right of privacy and permitted married people to obtain contraceptives.
Alito’s dismissal of the Griswold line of cases allows him to invent a history test and rely on the absence of any mention of abortion rights in 19th Century cases and commentaries as evidence that it is not part of the concept of “ordered liberty,” that define the outer limits of individual rights. As Jill Lepore writes, “To use a history of discrimination to deny people their constitional rights is a perversion of logic and a betrayal of justice,” (Source: “Of Course The Constitution Has Nothing To Say About Abortion,” by Jill Lepore, The New Yorker, 5/4/22).
The history of late 20th Century Constitutional jurisprudence has been one of a gradual expansion of the polity to include those previously excluded—women, Black people and LGBTQ people. Jettisoning the Griswold line of cases and substituting Alito’s “history test” endangers Obergefell v. Hodges, (marriage equality), Lawrence v. Texas, (right to engage in private consensual sex acts), Loving v. Virginia, (interracial marriage). A history test would endanger Brown v. Board of Education, since equal rights for Black people are hardly “deeply rooted in our nation’s history.
This is not a drill. Alito’s opinion does not simply destroy women’s bodily autonomy and relegate us to noncitizen status. It is also a roadmap for the erasure of the rights of “discrete and insular minorities” to allow Christofascists to impose their cramped and punitive worldview on us all. We can’t afford to sit back wringing our hands in despair. We have to help the very real women who will be harmed by this decision and donate to abortion funds to allow women to travel to states where abortion will still be legal. We have to hit the streets in protest and loudly proclaim that we refuse to go back to the world of back alley abortions that killed us. We must mobilize to elect Democrats in Blue states and fight voter suppression in Red ones so that we can pass federal legislation protecting reproductive freedom and expanding the Supreme Court. In other words, we have to use every one of our Constitutional rights…while we still have them.
In Our Own Voice: Black Women’s Reproductive Justice Agenda
Thanks Lisa. I just donated. Nan Bloom
Thank you Lisa for a clear description of what was done and how we must mobilize and react.