What Was Justice Alito Thinking?

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Protesters demonstrate outside the U.S. Supreme Court in response to the leaked draft opinion indicating the Court will overturn Roe v. Wade, on Mothers Day, May 8, 2022. (Tom Williams / CQ-Roll Call, Inc via Getty Images)

When Justice Samuel Alito did the final proofreading of his majority opinion in Dobbs v. Jackson Women’s Health Organization, he must have felt a great sense of moral rectitude and satisfaction at the fulfillment of a half-century-long mission as he savored the punch line:

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

But he should also have been a bit nervous about the thinness of some of his assertions and the vulnerability of some of his legal analysis, as well as about comments in a concurring decision from Justice Clarence Thomas. That last reading might have gone something like this.


What he wrote:

“[A] State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications.”

What he thought:

Thank god we’ve managed to keep the Equal Rights Amendment out of the Constitution! If it had been ratified, my whole legal argument would be chopped liver. Ginsburg always wanted reproductive rights to be based on equal rights analysis rather than the right of privacy. Let’s hope they can’t get the ERA published and certified—though, since it has met the only two requirements of Article V with its 38th state ratification in 2020, it’s hypocritical for us originalists to contend that it’s not in the Constitution already.


What he wrote:

“The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition.”

What he thought:

I dodged the fact that until the mid-1800s, women—at least free women—could legally do anything they wanted to bring on a menstrual period before they felt fetal quickening at about four or five months. My feeble attempt to finesse around that would have gotten me slammed in a law school class: “[T]he fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.”

I also cited common-law authorities who wrote that a post-quickening abortion was a crime—all of them men from the 13th to the 18th centuries who were dead before the Constitution was written and before women were legally considered anything much other than appendages to men.


What he wrote:

“[T]he Court finds the Fourteenth Amendment clearly does not protect the right to an abortion.”

“The Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy.”

What he thought:

Oops, here’s a place I could get hoist with my own petard!


What he wrote:

“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is … because it destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’ … [T]hose cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way.”

What he thought:

Damn it, Clarence! Why did you tip our hand in your concurring opinion by saying Dobbs sets us up to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.”

It’s clear that we’re gutting the right of privacy, but we don’t need to say the quiet part out loud—that we’ll be able to go after contraception and same-sex relationships and marriage. You didn’t put Loving v. Virginia on the hit list, though—banning miscegenation a little too close to home, eh?

I tried to cover for us by writing, “The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Do you think Susan Collins (R-Maine) will believe that one too?


What he wrote:

“Some of the Court’s most important constitutional decisions have overruled prior precedents. See, e.g., Brown v. Board of Education ….”

What he thought:

Yeah, even I admit the cynical fallacy here. The Court’s significant overruling of precedents have been for the purpose of expanding constitutional rights, not for taking rights away from people.


What he wrote:

“The Casey plurality’s speculative attempt to weigh the relative importance of the interests of the fetus and the mother represent [sic] a departure from the ‘original constitutional proposition’ that ‘courts do not substitute their social and economic beliefs for the judgment of legislative bodies.”

“The Court’s job is to interpret the law, apply longstanding principles of stare decisis and decide this case accordingly.”

What he thought:

Whoa, why did I mention precedents so often? And that courts shouldn’t substitute their social beliefs for interpretation of the law? Is it possible that Ruth got into my head at a few places here? Hey, I’d better check in the mirror. Is there a fly on my hair?


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

Roberta W. Francis is ERA education consultant for the Alice Paul Institute in Mount Laurel, N.J., and former chair of the ERA Task Force of the National Council of Women’s Organizations. A gender equity consultant and writer, she has worked for 45 years on a broad spectrum of issues for women’s advancement, from education and pay equity to reproductive rights and violence against women.