Alito’s Plan to Repeal the 20th Century

If the conservative justice’s draft opinion is adopted by the Court, key advances of the past hundred years could be rolled back.

Illustration of columns falling like dominoes
Getty; The Atlantic

If you are an American with a young daughter, she will grow up in a world without the right to choose when and where she gives birth, and in which nothing restrains a state from declaring her womb its property, with all the invasive authorities that implies.

That is the significance of the draft Supreme Court opinion leaked to Politico, which shows that the right-wing majority on the Court intends to discard Roe v. Wade and Planned Parenthood v. Casey, landmark precedents guaranteeing the constitutional right to abortion. The justices can change their minds before judgments are issued, but their opinions are drafted after they’ve taken an initial vote on the cases themselves. The draft likely reflects the direction of the final decision, even if the scope of that decision changes.

The draft, written by Justice Samuel Alito, is sweeping and radical. There is no need to dwell too long on its legal logic; there are no magic words that the authors of prior opinions might have used in their own decisions that could have preserved the right to an abortion in the face of a decisive right-wing majority on the Court. The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification. Alito, like the five other conservative justices, was placed on the Court by the conservative legal movement for the purpose of someday handing down this decision. These justices are doing what they were put there to do.

Alito claims to be sweeping away one of the great unjust Supreme Court precedents, such as Dred Scott v. Sanford, which held that Black people had no rights white men were bound to respect, or Plessy v. Ferguson, which upheld racial segregation. But in truth, Alito is employing the logic of Plessy, allowing the states to violate the individual rights of their residents in any way their legislatures deem “reasonable,” as the opinion in Plessy put it. Homer Plessy’s argument was that the segregation law violated his Fourteenth Amendment rights, and that those rights should not be subject to a popularity contest in every state in the union; what Alito describes as a “restrictive regime” of constitutional protection for abortion rights is the kind of safe harbor Plessy himself sought.

In Plessy, Justice Henry Billings Brown held that Louisiana’s segregation law, as far as the Fourteenth Amendment was concerned, “reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature.” Alito has now applied this same logic to abortion—but not just abortion—arguing that in the future, courts should defer to state legislatures “even when the laws at issue concern matters of great social significance and moral substance.” There’s no doubt that the Louisiana legislature felt the 1890 Separate Car Act was such an issue.

Plessy is, at its absolute core, a states’-rights case, in which the Court envisioned a notion of federalism so weak, so toothless, so bereft of substance that the federal government had no legitimate role in protecting Black people from states imposing racial segregation upon them,” Aderson Francois, a law professor at Georgetown University, told me. “This draft does the same thing: It envisions a notion of federalism so weak, so toothless, so bereft of substance that the federal government has no legitimate role in protecting women from states imposing forced births upon them.”

The implications of this ruling are therefore tremendous. Notwithstanding the reality that being a woman does not mean being pro-abortion-rights, all over the world the right to decide when and whether to give birth is tied to the political, social, and economic rights of women as individuals. That right is likely to be severely curtailed or to vanish entirely in at least 26 states if this decision takes effect. If the draft becomes the Court’s decision, however, it would have implications for more than just abortion. In the U.S., the rights of many marginalized groups are tied to the legal precedents established in the fight for abortion rights. This opinion, if adopted, provides a path to nullifying those rights one by one.

“The majority can believe that it’s only eviscerating a right to abortion in this draft,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me, “but the means by which it does so would open the door to similar attacks on other unenumerated rights, both directly, by attacking the underpinnings of those doctrines, and indirectly, by setting a precedent for such an attack.”

Aside from rights specifically mentioned in the text of the Constitution, Alito argues, only those rights “deeply rooted in the nation’s history in tradition” deserve its protections. This is as arbitrary as it is lawless. Alito is saying there is no freedom from state coercion that conservatives cannot strip away if conservatives find that freedom personally distasteful. The rights of heterosexual married couples to obtain contraception, or of LGBTQ people to be free from discrimination, are obvious targets. But other rights that Americans now take for granted could easily be excluded by this capricious reasoning.

“In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating,” Kimberly Wehle wrote last December. “A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.”

The right-wing majority’s radical repurposing of the so-called shadow docket to set precedents and nullify constitutional rights rather than simply deal with time-sensitive matters foreshadowed this outcome. In the Court’s religious-freedom decisions related to the coronavirus pandemic, and in its choice last year to allow Texas to nullify the right to an abortion, you can see the outlines of this new legal regime: On the grounds that it constitutes a form of religious discrimination, conservatives will be able to claim an exemption from any generally applicable rule they do not wish to follow, while imposing their own religious and ideological views on those who do not share them. Although the right-wing justices present this rule in the language of constitutionalism, they are simply imposing their ideological and cultural preferences on the rest of the country. Roe itself left those opposed to abortion free not to have one; striking it down allows states to prevent those seeking abortions from obtaining them.

American life will now be guided by the arbitrary vicissitudes of conservative cultural identity, gleaned from Fox News, and by the justices’ inclination to shape their own views to conform to that identity. Aided by voting restrictions and partisan gerrymandering, the conservative movement will argue that its most coercive mandates have popular legitimacy, no matter how much of the country opposes them. If politicians are immune to popular majorities, they have no reason to heed them. But Republicans hardly need such advantages to prevail. One of the baffling mysteries of the past five years is why a movement so effective at the work of democracy is so dedicated to ending it.

An entire industry of commentators has tied its legitimacy to the Court, and they will obfuscate, semanticize, and quibble. These figures have long forestalled any backlash to the Court’s right-wing radicalism by muddying the waters about the significance of an appointment, a decision, a precedent. They have lied to the public, so that it does not realize what is being taken from it. In response to this decision, they will insist that the unprecedented leak is more important than the world the draft threatens to create. It is not.

Similarly, in his opinion, Alito writes that “we emphasize that our decision concerns the constitutional right to abortion and no other right,” and that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Give this statement the same weight that should have been given to Alito’s scolding of the press shortly after the Court’s shadow-docket decision on the Texas abortion ban, and his insistence that it had no bearing on Roe and did not nullify the right to an abortion in Texas. Alito’s word means absolutely nothing.

“This is total gaslighting; he knows as well as anyone that these other rights are like Roe, rooted in the right to privacy. If Roe is imperiled because it is unenumerated and not ‘rooted in our history and tradition,’ then these other rights are also subject to challenge,” Melissa Murray, a law professor at NYU, said of Alito’s disclaimer. “Conservative lawyers are going to eat this up like catnip, and of course they are going to challenge these other precedents.”

The conservative movement has been working toward this victory for decades, and it has been made possible not simply by its determination and a few fortunate accidents, but by the haplessness of its opponents. Many in the center of the Democratic Party have been paralyzed by the belief that they might “do popular stuff” and coast to victory without having to get their hands dirty fighting the opposition, while its left-wing critics too often forget that democracy is an ongoing process, not a battle that ceases after casting the right vote once or twice. In both cases, the right has been fortunate in having opponents who argue themselves into complacency.

The overturning of Roe will create a backlash, although not necessarily one that today’s Democrats will profit from, given their aversion to conflict. A movement will eventually emerge to oppose the criminalization of abortion and the despotisms this draft would create, and perhaps some of its leaders are alive today. Whoever they are, they will understand, just as the right-wing activists who worked decades for this moment do, that the freedoms enjoyed by one generation can be stripped away by another.