The New Jane Crow
Justice Alito’s draft opinion signals a willingness to subject women and girls to second-class citizenship.
With the Supreme Court poised to overturn Roe v. Wade, abortion access for tens of millions of women and girls across the nation may soon be a matter of the past. For many women of means, who can travel and pay for child care, the loss of Roe will be disruptive. For many poor women—particularly poor women of color—the loss will be deadly. This is the coming of the new Jane Crow.
Certain aspects of the era of the new Jane Crow are already predictable. First, high rates of maternal mortality will persist, and Black and brown women will disproportionately experience the blow and brunt of these deaths. Medicaid will not be expanded in anti-abortion states, nor will welfare benefits increase to meet families’ needs.
Second, states will turn to civil and criminal punishments of women and girls who seek abortions through medication or by traveling out of state. Even now, before Roe has fallen, lawmakers are working on such legislation. Third, just as the Jim Crow era sanctioned racism and racial profiling, the Jane Crow era will be marked by greater surveillance of pregnant women and the curation of laws, practices, and policies to justify stalking, watching, and policing women’s bodies. That is our near future.
Already today, we know how dangerous pregnancy and delivery can be. An American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion—a fact the Supreme Court itself acknowledged in Whole Woman’s Health v. Hellerstedt just six years ago. In Louisiana, giving birth is roughly 57 times more dangerous for women than having an abortion. For Black women, the risk of death is especially dire—and especially in states eager to ban abortions. For example, according to the Mississippi Department of Health’s most recent investigation of maternal health and mortality, Black women accounted for “nearly 80% of pregnancy-related cardiac deaths” in that state; they also suffered from far greater rates of gestational diabetes, sepsis, and hemorrhaging. Black women in Mississippi are 118 times more likely to die from giving birth than from having an abortion. To be Black and pregnant in America is a deadly combination.
Some of this devastation is the result of the anti-abortion movement itself, and in particular its white, male champions in statehouses across the South. These legislatures have targeted abortion providers for decades, stripping them of their ability to provide essential health-care services for poor women, including pap smears, cancer screenings, and contraception. Their efforts have contributed to the United States being the deadliest country in the developed world to be pregnant.
Surely Justice Samuel Alito and the four justices who, according to Politico, voted to sign on to his draft opinion are aware of this. But do they find such data relevant? Seemingly not, as the draft opinion barely acknowledges maternal deaths—and does so only in reference to 1973, not 2022.
Alito’s draft opinion is disturbing for many reasons, including its fundamental proposition that constitutional rights do not exist unless explicitly articulated or enumerated in the Constitution. (This principle casts into doubt the legitimacy of corporate religious personhood—an artful contrivance of law innovated in 2014 by Justice Alito himself in Burwell v. Hobby Lobby, a case that bestowed religious liberties on for-profit corporations that sought to limit contraceptive access for female employees on their insurance plans. Nowhere in the Constitution or the Religious Freedom Restoration Act of 1993 is it mentioned that for-profit corporations shall have religious identities and liberties. But here we are.)
Moreover, despite Alito’s apparent commitment to originalism and textualism, one of the most glaring omissions in his draft is the Constitution’s declaration that “all persons born or naturalized in the United States … are citizens of the United States.” The Constitution does not mention embryos, fetuses, or “unborn children.”
Perhaps most troubling are the authorities Alito turns to. Alito writes about and relies on “Blackstone, Coke, Hale, and the like”—legal scholars who claimed that women had no independent existence apart from their husbands and fathers, were property, and could lawfully be subjected to physical punishment and even rape by their husband. According to the English jurist William Blackstone, this was for “her protection and benefit; so great a favourite is the female sex of the laws of England.”
In 1736, Matthew Hale’s treatise Historia Placitorum Coronae (“The History of the Pleas of the Crown”) maintained that a woman could not be raped by her husband. Hale proclaimed that marriage conveys unconditional consent: A wife has entered a binding contract and “hath given up herself in this kind unto her husband, which she cannot retract.”
For centuries, U.S. legislatures and judges, just like Alito, relied on Hale to justify the most egregious harms inflicted on women. Not until the late ’90s was marital rape finally punishable throughout the entirety of the United States—as this was ultimately a states’-rights issue. Ostensibly, Alito now proposes a states’-rights approach to rape and incest exceptions in abortion bans.
Leaving the protection of people who can become pregnant to the devices of hostile state legislatures has been and will be disastrous. In the past, such states’-rights approaches resulted in lower courts dismissing cases that involved spousal rape and incest. A century ago, in Roller v. Roller, the Washington Supreme Court ruled that a girl could not sue her father for rape. The court claimed that doing so would interrupt “domestic harmony.” But whose domestic harmony mattered? Certainly not that of the daughter who had been raped. In making such decisions, states relied on the very sources now cited by Alito to subject women and girls to second-class citizenship. It is those men from another century who are shaping the grim future ahead.