What Alito Got Right
The Court’s job is not to determine which rights we should possess but rather which rights we do possess.
Sign up for David’s newsletter, The Third Rail, here.
We do not know if Justice Samuel Alito’s leaked draft majority opinion in Dobbs v. Jackson Women’s Health represents the current consensus of a majority of the Supreme Court. We certainly don’t know yet if it’s a preview of the Court’s actual ruling. Decisions are not final until opinions are issued, and dramatic history exists of a Supreme Court justice changing his mind on abortion during deliberations. In 1992, The Washington Post reported that Justice Anthony Kennedy initially voted to reverse Roe v. Wade when deciding Planned Parenthood v. Casey but later switched his vote to affirm Roe, “a flip attributed in court circles to liberal constitutional scholar Laurence H. Tribe’s pulling strings backstage.”
Even so, Alito’s draft is consequential. It not only represents a potential preview of one of the most significant Court decisions in a generation, but also articulates a compelling understanding of the nature of liberty and the role of the judiciary in American constitutional law.
First, it’s important to understand the question before the Supreme Court. It is not “Should American women possess a right to abortion?” but “Does the American Constitution protect abortion rights?” The distinction is of paramount importance. The Court’s job is not to determine which rights we should possess but rather the rights we do possess.
A surface reading of the Constitution would indicate an easy answer to the question. Because the Constitution doesn’t even mention abortion, how can one argue that it protects a right to an abortion? Don’t we have to locate the right in the text itself?
But the matter is not so simple, and the reason relates to the basic theory of American liberty. At the risk of oversimplifying a complex debate, the quick explanation is that many of the Founders viewed the Constitution as reserving “all rights and powers that were not positively granted to the federal government” to the people or the states. In plain English, this means that the Constitution did not need to spell out our individual rights. They existed unless a constitutional provision declared otherwise.
Anti-federalists, however, insisted on the Bill of Rights as a belt-and-suspenders safeguard against federal encroachment. By spelling out (some) of our fundamental liberties, the citizens of the new republic could be assured that the federal government would be restrained. And how do we know that the Bill of Rights didn’t outline all of our liberties? Because the Ninth Amendment specifically states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In Roe v. Wade and Planned Parenthood v. Casey, the Court located the right to an abortion in the due-process clause of the Fourteenth Amendment. This amendment prohibits any state from depriving “any person of life, liberty, or property, without due process of law.” Prior courts have used this provision of the Constitution as the textual hook to protect not just procedural rights but unenumerated substantive rights, including rights to interracial marriage, same-sex marriage, and contraceptives.
In his draft opinion, Alito calls this approach “controversial” (after all, the due-process clause says nothing about substantive rights) but accepts the conceptual approach anyway. He notes that Court precedent has protected “two categories” of substantive rights.
The first category is the list of liberties guaranteed by the first eight amendments in the Bill of Rights. That category doesn’t apply to abortion, which isn’t mentioned in the Bill of Rights. The second category refers to those rights “deeply rooted in [our] history and tradition” and “essential to our Nation’s ‘scheme of ordered liberty.’”
Alito’s opinion represents a thorough dismantling of the idea that—prior to Roe—abortion rights were rooted at all in American history and tradition, much less “deeply rooted.” In fact, the deep roots that exist are of state regulation and prohibition of abortion. The draft opinion concludes with a 31-page appendix listing statutes that criminalized abortion in “all states of pregnancy” when the Fourteenth Amendment was ratified in 1868.
The draft opinion also rejects the idea that the right to an abortion is an “integral part of a broader, entrenched right.” Alito distinguishes the long line of cases recognizing the rights to interracial marriage; to obtaining contraceptives; to engaging in private, consensual sexual acts; and to same-sex marriage by noting that abortion “destroys” what Roe and Casey call “potential life” and what the Mississippi law at issue in the current case “regards as the life of ‘an unborn human being.’”
It’s the impact on the unborn child that sets apart Dobbs, the case on which Alito wrote his draft opinion, from, say, Obergefell v. Hodges, the Court’s ruling on same-sex unions. Gay marriage involves consenting adults. No unborn child consents to his or her own destruction.
The inherent weaknesses of Roe’s approach have long been recognized even by the strongest defenders of abortion rights. In 1992, for example, Ruth Bader Ginsburg criticized Roe as a “breathtaking” precedent during a speech at New York University.
Her lecture addressed “measured third-branch decision making,” and she spoke words that have proved remarkably prescient. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” she said. And what was a prime example of a too-swiftly shaped doctrinal limb? Roe v. Wade. “A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day … might have served to reduce rather than to fuel controversy.”
If Alito’s draft opinion answers whether the Constitution does protect abortion, it does not answer whether states should protect abortion. Voices on the right argue that the Constitution should be read to prohibit abortion entirely—and at least one amicus brief made that very argument—but Alito does not go that far. His opinion would leave the ultimate legality of abortion to the democratic process, to state legislatures and to Congress.
And that brings us to the final key element of Alito’s opinion. He calls abortion “a profound moral question,” but it’s one that he does not settle. He does not believe that it is the role of the judiciary to settle such questions.
Here is where the differences between conservative and progressive jurists are perhaps starkest. Going back to Justice Ginsburg’s 1992 remarks, she argued (quoting Oliver Wendell Holmes) that “judges do and must legislate.” Even though Justice Ginsburg argued for a change slower and more interstitial than Roe, conservative justices such as Alito would still strenuously disagree.
Instead, enacting legal change is precisely the role of the people’s elected representatives. Legislation is for the legislature, and if the people of the United States want to create a right to abortion, they have that power. They had that power before Roe, and if Alito’s opinion holds, they will still have that power.
Listen to the writers Molly Jong-Fast, Mary Ziegler, and David French on Radio Atlantic: