Some Thoughts After Reading the Opinion

On Justice Alito's Leaked Draft Opinion

Hello, friends,

POLITICO leaked one of the most important draft opinions ever - SCOTUS is going to overturn Roe and Casey, in an upcoming decision that saw the Court review a Mississippi anti-abortion law that would ban abortions, with the exception of medical emergencies and in cases of severe fetal abnormality, later than 15 weeks after gestation. The text of the law, if allowed to remain legal, was in contradiction to the current abortion regime beginning with Roe, which saw the Court (7-2) rule that women have a “right” to privacy, due to a particular reading of Section 1 of the Fourteenth Amendment which states that state’s shall not “deprive any person of life, liberty, or property, without due process of the law.” Roe itself was partially overturned nearly 20 years later in Casey vs Planned Parnenthood (1992), though not entirely. But either the Mississippi law was going to be deemed unconstituational or Roe and Casey were going to be overturned. The Court in an Opinion written by Justice Alito has sided with the latter. “We hold that Roe and Casey must be overruled,” declares the seventy-two year old Associate Justice, appointed by a president who wasn’t popularly elected.

Alito’s opinion and the Court ruling effectively opens the door for states to ban abortion, or for states to expand abortion access. But, what it categorically will due is to eliminate abortion as a federal “right.” And without federal protection, you don’t really have “rights” in how we think of them. And, according to the Guttmacher Institute, we know that 26 states are likely or certain to ban abortion the second this Opinion officially drops.

I read through Alito’s draft the night it was leaked and I thoroughly enjoy wrestling with different jurisprudential arguments. This, however, was a maddening read. I was ready to throw around the word “archaic” pre-modern” and dark ages; what I wasn’t expecting was literally Alito referencing 13th century laws, terms, and definitions. And somehow he ignores or defines out all dissent, protests, agitation, disagreement, loses, etc. of American history when he asserts that abortion “rights” weren’t a part of our history. Yeah, sure, this “right” was recently created but the fight for women’s equality, reproductive justice, and women’s health care has been ongoing. Wild shit. Transparently ideological, too.

I will further categorize my thoughts into five different categories: on the ruling; on the ethics; on the politics; on the Court as an institution; on the limitation of principles.

The Ruling
Alito’s comes to the conclusion that “Roe and Casey” must come to an end after examining the cases, their arguments, and their outcomes across four different metrics: the text of the Constitution; American history; what he calls “workability”; and Roe/Casey’s effects on other areas of law. A few months ago, I was struck by then candidate and now incoming Associate Justice Ketanji Brown Jackson description of how the Court determines if a new right is allowed to be given. She described it as Scalia’s Orignalism winning the day. Alito’s draft opinion exemplifies the conservative Court’s deliberation process. Alito does construct a plausible argument that Roe and Casey were incorrectly decided based on the criteria that Originalists believe in. It’s debatable - but it’s also mostly incoherent regarding history, “ordered liberty” and so forth. We have had legal abortion in some capacity for 52 plus years - that is a fifth of our country’s history! Even Bret Stephens, a conservative, understands this, writing that this decision is “radical, not conservative” and pointing out that this decision screams “arbitrary” which is detrimental to Americans believing in the integrity of the country’s highest court.

The main problem, in my opinion, isn’t Alito’s jurisprudence, however - it’s the material and substantive implications of a post-Roe world. For one, we will see an increase in child poverty in this country because 75 percent of abortions are had by women at or near the poverty line. More specifically, “half of all US abortions go to the 13 percent of Americans living below the poverty line–which in 2022, means living on less than $13,590.10 Those living in poverty or near poverty make up a full 76 percent of abortions every year. These are people whose abortion decisions are motivated, at least in part, because they cannot afford the costs of child rearing.” So, the ruling is debatable in terms of jurisprudence but it is, in my opinion, a terrible ruling for obvious moral reasons. Women living in red states, primarily poor, working class, black, Hispanic, indigenous women, are absolutely going to face more challenging circumstances - and they will be subject to being arrested and thrown into a corrupt criminal justice system.

The Ethics
Women were excluded from the American body politic in so many ways, including the right to vote until 1920. Black women and indigenous women didn’t have a secured right to vote until 1965 and even, practically speaking, even later in some instances. As late as 1974, women in some states could not take out a credit card in their own name; could be fired for getting pregnant until 1978; and it wasn’t until 1975 that women could serve on juries in all 50 states. These are just a few examples of legal discrimination and inequality. There are plenty more. Women have been fighting for equality since we have been homo sapiens (before that? who knows!), and certainly everything we know from women’s books, journals, music, so forth illustrates that women and supporters of women have understood that any true notion of “ordered liberty” can only exist if half of the population is considered 100% equal. We do not derive our morals from the Constitution, but from various philosophies and beliefs. My belief system is, crudely speaking, liberal egalitarian humanism, one that is broadly social democratic, anti-racist, and feminist. So, obviously, I deplore this upcoming decision in all of the ways that are relevant. Women’s autonomy, equality, security, health - these are all fundamental concepts that deserve protection in terms of laws, regulations, norms, ethics, and “rights.” Humans deserve as many rights as we can fight for and get. Never forget that.

The Politics
Both parties and political coalitions will organize either for or against. And it’s not easy to predict with coalition benefits. Will the right feel more galvanized? Will they feel like they won, so won’t be as eager or concerned about coming out to vote? Will the Democrats effectively organize and make the case that this ruling is reason #4,569 to vote against the right? My instinct here is to look at opinion polls in terms of (1) general opinions towards abortion rights/access; and (2) to see if it is an issue that pulls people to vote. And the results are mixed. A strong majority of the country supports abortion rights; but it’s hard to find strong data that the issue pushes people to polls - though we haven’t lived in a post-Roe world yet so who knows.

SCOTUS
It’s hard to summarize my opinion on SCOTUS. If we were coming up with the supreme court of the U.S. ex nihilo, from scrap, it would be extremely tough to know exactly what to change. I would have to consult what law scholars and theorists have thought about this over the decades to begin refining my position. But, I definitely value the legislative and executive branches of government more as they are, in theory, responsible and subject to democratic mechanisms of power more directly. And certainly it is an abomination that three of the current nine Justices were nominated by a president who lost the popular vote; and another two were nominated by a president who lost the popular vote the first time he was elected. Term limits? I certainly do not believe in term limits for the legislative or even executive branch, but for judges who aren’t elected I think I would support some term limits (20 years? 15 years?) but that is procedural and can’t guarantee any outcomes that I might support.

And in terms of leaks: I don’t have an universalist opinion on them which brings me to some thoughts in terms of principles, though I certainly believe in private deliberation because it often produces better outcomes. There is a great Foreign Affairs essay from 2019 on this called “The Dark Side of Sunlight: How Transparency Helps Lobbyists and Hurts the Public.”

The Limitations of Principles
Stare decisis? Good…when it supports pro-social, liberal, progressive, humanistic, egalitarian changes. Bad when it doesn’t. No principle can be absolute. Alito himself is correct when he points this out in the leaked draft opinion. There is no Categorical Imperative. All ethics are comparative and they require context. If you aren’t a consequentialist, you aren’t doing real ethics. “Whether an act is morally right depends only on the consequences of that act” Exactly. I care about the material, substantive realities of conscious beings, and I’m a humanist and a pro-human speciesist (But I’m also an environmentalists - this shit gets complicated. Have you ever tried to really write down and examine your beliefs, values, ethics, and so forth? It’s extremely hard). This decision will hurt women, especially working class women. This decision will put more babies in poverty. This decision is deeply unethical because it will produce worse outcomes for living human beings particularly those who are already marginalized. This is actually quite simple.

Thanks for reading,
Patrick M. Foran