Alito’s Opinion Is a Blueprint for Rolling Back Civil Rights While Claiming To Protect Black Fetuses

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Activists at a rally in front of the U.S. Supreme Court in response to the leaked Supreme Court draft decision to overturn Roe v. Wade on May 3, 2022. (Alex Wong / Getty Images)

In his leaked draft Supreme Court opinion, Justice Samuel Alito lays out a legal argument to abolish the long-established constitutional right to abortion. The reasoning of the decision could have much wider implications for women and people of color, abolishing many of the rights we have come to take for granted in modern society.

While the 98-page opinion, dated Feb. 10, will likely change at least to some degree before becoming official, it’s a clear indication that the Supreme 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). Whether they do so in the sweeping terms of the Alito opinion has yet to be determined.

In his opinion, Alito argues that if a right is not explicitly and specifically stated in the Constitution, and it is not “deeply rooted in the country’s history and traditions,” the Constitution does not protect that right. His argument adopts the legal theory of originalism—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. Alito’s approach means that people historically excluded from rights cannot secure them through the Constitution.

This reasoning could be used to undermine half a century of jurisprudence recognizing the rights of women, Black people, LGBTQ people and others—rights established in cases such as Brown v. Board of Education (equal education), Griswold v. Connecticut (contraception), Loving v. Virginia (interracial marriage), Craig v. Boren (the right to be free from sex discriminatory laws), the right to engage in consensual sexual relations (Lawrence v. Texas) and the right to marry someone of the same sex (Obergefell v. Hodges). The opinion is a blueprint for ending many longstanding rights we take for granted today and threatens to dismantle the legacy of the Warren Court.

The last 30 pages of the draft opinion is a list of criminal abortion laws adopted in the 19th century, cited to prove that abortion is not “deeply rooted in the country’s history and traditions” and therefore is not guaranteed by the Constitution. One could find a similar list of laws against birth control, fornication (sex outside of marriage), sodomy, interracial marriage, same-sex marriage, women’s equality, racial equality and many other things that we today take as fundamental rights.

Alito 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. His reasoning chillingly shows how the Court could easily undermine other established constitutional rights.

Alito argues that rights not explicitly stated in the Constitution or “deeply rooted in the country’s history and traditions” can be won only through the legislative process by a majority of “the people and their representatives.” He ignores fact that women do not have equal representation in state legislatures, nor do people of color. Women average only 31.2 percent 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 underrepresented:

  • 13.4 percent in West Virginia;
  • 15.2 percent in Tennessee;
  • 15.5 percent in Mississippi;
  • 16.4 percent in Alabama;
  • 17.1 percent in South Carolina;
  • 17.8 percent in Wyoming; and
  • less than 20 percent in Louisiana.

People of color similarly have less than 30 percent of legislative seats and much less in many states, including 18 percent in Oklahoma, 17 percent in Virginia and 15 percent in Tennessee.

Alito claims the Roe decision “short-circuited the democratic process”—an ironic critique coming from a conservative majority of justices who were almost all appointed by Republican presidents who lost the popular vote.

Our human rights are inherent, not created only with a majority vote.

Despite the potential to undermine civil rights, Alito suggests he is acting in support of Black Americans when he says in a footnote that “a highly disproportionate percent of aborted fetuses are Black.” In making this point, he echoes an argument made in the 2019 case of Box v. Planned Parenthood by Clarence Thomas, who cautioned that abortion and birth control could become a “tool of eugenic manipulation.” This perspective ignores a long history of Black activism for birth control, abortion and reproductive justice, as well as the long-term alliance between white supremacist and anti-abortion movements.

University of Kentucky scholar Carol Mason has traced the strong links between white supremacy and anti-abortion forces, which converged on the U.S. Capitol on Jan. 6, 2021, using tactics honed at violent protests outside of abortion clinics. The anti-abortion movement claims that abortion is “the real Holocaust” and is genocide against Black people.

Just as they claim to care about babies and then refuse to support programs that would feed and house them after they are born, they also claim to care about women and Black people while voting against legislation that would enhance the rights of these groups.

The anti-abortion movement has tried to coopt civil rights and women’s rights arguments by supporting “prenatal nondiscrimination” laws—with preposterous names such as the Frederick Douglass and Susan B. Anthony Prenatal Nondiscrimination Act—that would ban abortion supposedly motivated by the race or sex of the fetus. These laws would target Black women, and South Asian and Chinese immigrant women seeking abortion healthcare.

In 2010, anti-abortion groups launched a racialized campaign to criminalize abortion with billboards declaring “Black Children Are An Endangered Species” and “The Most Dangerous Place for an African American Is In The Womb,” claiming that abortion “is the #1 killer of African Americans.” Just as they claim to care about babies and then refuse to support programs that would feed and house them after they are born, they also claim to care about women and Black people while voting against legislation that would enhance the rights of these groups.

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 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 healthcare as well as those who support them. The women most likely to be targeted are women who are Black, Indigenous, Latina, low-income, immigrant and undocumented. 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.

Alito ends his draft opinion by arguing 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 and race discrimination—an Orwellian claim.

Abortion bans would in fact endanger the lives of Black women—who die at three times the rate of white women during pregnancy and childbirth—and would likely lead to the disproportionate arrest and incarceration of Black women and people in their communities who support them seeking abortion care. Banning abortion would lead to the biggest expansion of the criminal justice system and mass incarceration since Ronald Reagan’s devastating war on drugs, which also targeted people of color.

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.

The right-wing has been gunning for the gains of the civil rights movement, the women’s movement and the LGBT movement for decades. With Alito’s draft opinion, they have a blueprint for how to roll back these rights. They have now put in place a Supreme Court that is more than willing to carry out the goal of obliterating civil rights for historically marginalized people and solidify white male power.

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.