What Would Alito’s Draft Opinion Mean for Women’s Rights?

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An abortion supporter in front of the U.S. Supreme Court on May 3, 2022. In a leaked initial draft majority opinion obtained by Politico and authenticated by Chief Justice John Roberts, Supreme Court Justice Samuel Alito wrote that the cases Roe v. Wade and Planned Parenthood v. Casey should be overturned, which would end federal protection of abortion rights across the country. (Alex Wong / Getty Images)

“Abortion presents a profound moral issue,” wrote Samuel Alito in the first line of his draft Supreme Court abortion opinion leaked on May 2. In fact, abortion is a healthcare issue that profoundly affects women—their health and safety, their relationships and families, their education and careers, their economic well-being and their dignity. And potentially their very freedom if states are allowed to criminalize abortion. But to read Alito’s opinion, you’d never know it.

The Alito opinion in Dobbs v. Jackson Women’s Health Organization gives America a glimpse into a dystopian future where the Constitution would offer no protection for women’s rights because they are not “deeply rooted in the country’s history and traditions.”

While the 98-page opinion, dated February 10, will likely change at least to some degree before becoming official, it’s a clear indication that the Court is poised to fully reverse the half-century-old precedent of constitutional abortion rights established in Roe v. Wade (1973) and reaffirmed in Casey v. Planned Parenthood (1992).

Alito’s opinion basically says that if a right is not explicitly and specifically stated in the Constitution, and if there’s not a long tradition of protecting that right, the right does not exist.

The opinion would terminate many longstanding rights and allow politicians and police to insert themselves back into our most intimate relationships. Such a terrifying approach could be used to eliminate many of the rights we take for granted today—not only abortion, but contraception and the right to engage in consensual sexual relations. Alito’s draft opinion not only overturns abortion rights established almost half a century ago in Roe v. Wade, but also threatens rights to contraception (Griswold), consensual sexual relationships (Lawrence) and same-sex marriage (Obergefell).

Alito’s approach means that people historically excluded from the Constitution could not secure their rights through a contemporary reading of the Constitution. His argument is originalism on steroids—the idea that the Constitution can only ever mean what the founders intended it to mean, importing all of their biases to determine our rights today. The absurdity and injustice are palpable.

Moreover, this position defies over a half a century of jurisprudence recognizing the rights of women, Black and LGBTQ people and others—rights established in cases such as Brown v. Board of Education (equal education), Loving v. Virginia (interracial marriage) and Craig v. Boren (the right to be free from sex discriminatory laws).

The last 30 pages of the draft opinion is a list of criminal abortion laws adopted in the 19th century. One could find a similar list of criminal laws against birth control, fornication (sex outside of marriage), sodomy, interracial marriage, same-sex marriage and many other things that we today take as fundamental rights.

Griswold, Roe, Lawrence and Obergefell closed the door to government interference in intimate sexual relationships. In the 1965 case of Griswold v. Connecticut, Justice William Brennan argued: 

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights…”

If Alito has his way, the police and politicians could very likely once again be searching our bedrooms for those telltale signs of illegal sexual behavior.

Alito focuses very narrowly on abortion rather than considering the general right to privacy that encompasses the abortion decision, which is how the original authors of Roe v. Wade articulated the right. He does this because in fact privacy rights are “deeply rooted in this Nation’s history and tradition.”

Alito does not address the obvious fact that forcing women to carry pregnancies to term against their will—and imprisoning them if they end their pregnancies—violates our liberty.

The Roe Court found the right to privacy in the Bill of Rights itself—the first 10 Amendments to the Constitution: The Fourth Amendment right to be free from unreasonable search and seizure, the Fifth Amendment right not to have to self-incriminate, the First Amendment freedom to associate and even the Third Amendment right not to have to quarter soldiers.

The Roe Court also looked to the Ninth Amendment, which says that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” meaning that just because they didn’t specifically list out all possible rights doesn’t mean they don’t exist.

Glaringly rare in Alito’s opinion is consideration of how laws criminalizing abortion would impact women and women’s “liberty,” which is explicitly protected in the Constitution by the post-civil-war 14th Amendment. Alito does not address the obvious fact that forcing women to carry pregnancies to term against their will—and imprisoning them if they end their pregnancies—violates our liberty.

He doesn’t even bother to weigh the interests of the pregnant woman and the supposed rights of the fetus. He just assumes fetal rights take precedence over the woman’s rights, even if the pregnancy will kill her.

Alito tries to distinguish abortion from other behaviors encompassed by the right to privacy, such as contraception, intimate sexual relations and marriage, by arguing that “abortion is fundamentally different” because it “destroys….an ‘unborn human being.’” This is an explicitly religious opinion, one that different religions interpret differently, and one that has no place in a pluralistic and democratic society.

Alito also disregards a core principle in U.S. law—stare decisis, Latin for ”let the decision stand”—by overruling the half-century-old precedent of Roe v. Wade. Alito engages in a detailed discussion of the five factors courts use to determine whether a precedent is in error—the nature of the error, the quality of the precedent’s reasoning, the workability of the rules the precedent imposed on the country, the disruptive effect of the precedent on other areas of the law and the absence of concrete reliance.

Describing Roe as an “elaborate scheme” that “looked like legislation” and was “the Court’s own brainchild,” Alito arrogantly condemns the decision as “wrong and deeply damaging” and “far outside the bounds of any reasonable interpretation” of the Constitution.

On the issue of reliance, he argues disingenuously that women do not have a reliance interest on access to legal abortion because getting an abortion is generally an “unplanned activity” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”

Pregnancy and childbirth are dangerous—14 times more dangerous than abortion. The U.S. has the worst rate of maternal deaths in the developed world and this rate has been increasing in recent years.

He fails to mention how lack of access to abortion might disrupt education, employment or other aspects of women’s lives. He denies the Court can assess the effect of abortion bans on the lives of women, stating “the Court has neither the authority nor the expertise” to determine the impact on women’s lives.

Alito dismisses the powerful argument that denying access to abortion violates women’s equal rights by citing a thoroughly discredited 1974 decision of Geduldig v. Aiello, where the Supreme Court ruled that discriminating against a pregnant woman was not sex discrimination, but instead was discrimination between “pregnant and non-pregnant persons.” (The feminist movement in 1978 succeeded in amending Title VII of the Civil Rights Act of 1964 to clarify and prohibit sex discrimination on the basis of pregnancy.)

Alito uncritically cites anti-abortion arguments that banning abortion will not burden women because “leave for pregnancy and childbirth are now guaranteed by law in many states.” He ignores the fact that only 19 percent of U.S. workers are eligible for paid family leave, and few can afford to take unpaid leave. Low-income women, who have 75 percent of abortions, are the least likely to be able to afford unpaid leave or have jobs that provide paid leave. He also ignores the fact that pregnancy discrimination in employment is widespread, despite laws prohibiting it.

Echoing comments by Justice Amy Coney Barrett during the Court’s hearings on Dobbs, Alito callously argues that women can just give up their babies because “states have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously.” He says that women who put their newborns up for adoption today have “little reason to fear that the baby will not find a suitable home,” ignoring the vast, dysfunctional and underfunded foster care system in the U.S.

By focusing on what happens after the child is born, Alito entirely ignores the burdens that pregnancy itself places on women. In fact, pregnancy and childbirth are dangerous—14 times more dangerous than abortion. The United States has the worst rate of maternal deaths in the developed world and this rate has been increasing in recent years. In 2020, 861 women died from pregnancy-related causes in the U.S. Another 50,000 to 60,000 women each year suffer severe harm to their health due to pregnancy, labor and childbirth. Abortion bans would have a particularly severe effect on Black women, who suffer maternal mortality rates three times higher than white women.

Alito conveniently ignores these facts, instead flippantly asserting that the decision of whether to force women to endure unwanted pregnancies is a decision best made by a majority of “the people and their representatives.” He ignores that fact that women do not have equal representation in state legislatures where abortion bans are debated and passed. Women average only 31.2% of state legislators nationwide – but in many of the 26 states where abortion bans will take effect should Roe be overturned, women are more severely under-represented: 13.4% in West Virginia, 15.2% in Tennessee, 15.5% in Mississippi, 16.4% in Alabama, 17.1% in South Carolina 17.8% in Wyoming and less than 20% in Louisiana.

Alito argues the Roe Court “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people” and that the Court “short-circuited the democratic process”—an ironic critique coming from a conservative majority of Justices most of whom were appointed by Republican Presidents who lost the popular vote.

Perhaps most insultingly, Alito claims his decision “allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power.” He portrays abortion rights as a catfight among women, completely eliding how men—including the Catholic hierarchy of all-male priests in particular as well as corporate titans—have funded and led the anti-abortion movement for generations.

Alito also tries to deny the racist origins of abortion bans. He spends several pages of the opinion denying the clear historical record that abortion bans were in part adopted in the mid- and late-19th century in response to fears by Native-born white people concerned about decreasing birth rates of white women in comparison to higher fertility rates of immigrant women and women of color. He willfully ignores strong historical evidence that white supremacy and anxiety about women’s increasing rights in the mid-19th century fueled the passage of abortion bans.

A leader in the mid-19th century medical campaign against abortion, Dr. Horatio R. Storer, expressed concern about the nation’s westward expansion and whether the frontier would “be filled by our own children or by those of aliens?” He said, “This is a question that our own women must answer; upon their loins depends the future destiny of the nation.”

Alito’s draft opinion would open the door to criminal abortion laws that will lead to the investigation, arrest and imprisonment of women seeking abortion as well as those who support them, and lead to the largest expansion of the criminal justice system and mass incarceration since Ronald Reagan’s devastating war on drugs. And it won’t just be women seeking abortions who suffer. Pregnant women continuing pregnancies who experience miscarriages or stillbirths—or even defy their doctor’s orders—will end up in jail. We know because it’s already been happening.

The final absurdity is when Alito argues that one of Mississippi’s “legitimate reasons” for banning abortion is “the prevention of discrimination on the basis of race, sex and disability.” In other words, we need to restrict women’s rights in order to end sex discrimination—an Orwellian claim if there ever was one.

If we lose the right to abortion, women will lose control of their bodies and their lives. Definitive evidence proves that abortion bans harm women and their children. According to extensive, peer-reviewed research by Dr. Diana Greene Foster, women denied wanted abortions experience more serious health problems giving birth than those having an abortion, are more likely to stay in contact with a violent partner, are more likely to be left to raise the resulting child alone, and experience economic hardship and insecurity which lasts for years. Existing children of women denied abortions are over three times more likely to live in households below the federal poverty level, and they are less likely to achieve developmental milestones than the existing children of women who received abortion care.

We can hope that the draft opinion is not the final opinion adopted by the Court, but in the meantime, we must fight to pass the Women’s Health Protection Act, which would codify Roe v. Wade as federal law. We need to fight for recognition of the Equal Rights Amendment—which has been fully ratified by the states but was blocked by the Trump administration—so justices like Alito can’t erase women’s rights from the U.S. Constitution. We must fight to expand access to abortion pills in states restricting and banning abortion. And finally, we must mobilize for the fall elections. Our very lives depend on it.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.