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ROBBINS: The case against the case against Roe

Justice Alito’s draft is not only morally reprehensible but shows significant contradictions in its language

<p>In the leaked <a href="https://www.documentcloud.org/documents/21835435-scotus-initial-draft"><u>Supreme Court brief</u></a>, which is an initial draft majority opinion written by Justice Samuel Alito, it appears that the majority is in favor of overturning Roe v. Wade and upholding the Mississippi law that bans abortion after fifteen weeks.</p>

In the leaked Supreme Court brief, which is an initial draft majority opinion written by Justice Samuel Alito, it appears that the majority is in favor of overturning Roe v. Wade and upholding the Mississippi law that bans abortion after fifteen weeks.

Last week, Politico published an article leaking the details of an in-progress Supreme Court opinion draft for the case Dobbs v. Jackson Women’s Health Organization. This case concerns a Mississippi law banning abortions after 15 weeks, which is prior to when a fetus is considered “viable,” or could survive outside the womb. Typical fetal viability occurs around 23 or 24 weeks, though it depends on each individual pregnancy. The Mississippi law would strike down abortions long before that time, putting into question the constitutionality of such laws that restrict abortion prior to viability. This case set the stage for the Court to reexamine the legality of Roe v. Wade, the 1973 landmark Supreme Court case that determined a Texas abortion ban was unconstitutional and established the right under federal constitutional law for any pregnant person to terminate their pregnancy.

The leaked Supreme Court brief written by Justice Samuel Alito highlights that the majority is in favor of overturning Roe v. Wade and upholding the Mississippi law. This 98-page opinion is just a draft, but if representative of the final opinion, would overturn a 49-year right to bodily autonomy. On a moral level, this is disgusting — the fact that it is 2022 and there is still a debate over whether or not a person has the legal right to determine what to do with their body is horrific. At the same time, the Supreme Court’s job is not to decide what should be law, but rather, what is legal under the Constitution. The Court has technically done its job in using legal understanding to strike down Roe v. Wade — but even so, having read the brief, there are significant contradictions in its language and ideology.

One of the most significant fallacies with Alito’s opinion is the broad argument that unenumerated constitutional powers must be provided for by years of strong case law and history in legislation. Much of Alito’s opinion centers on the idea established in Washington v. Glucksberg that an unenumerated, or constitutionally unstated power, must be “deeply rooted in this nation’s history and tradition.” He claims that abortion law is not, and has never been, deeply rooted in this way. But there are a number of flaws in this argument. Firstly, nobody aside from straight, cisgender white men were present at the writing of the Constitution, nor were people who could become pregnant recognized as politically significant citizens with the ability to include reproductive issues on the docket. Ignoring this fact also ignores the inherent inequality present in original American law — people who can become pregnant were not considered equals for much of American history. Holding current laws to a standard of the past in which these segments of the population were not even included is both irresponsible and irrelevant to the case at hand.

Secondly, despite Alito’s claims that abortion rights are dependent on history that doesn’t exist, he later states that “abortion is nothing new — it has been addressed by lawmakers for centuries.” It could be claimed that Alito is referring here to other countries, rather than “this nation’s,” as stated in Washington v. Glucksberg — The brief certainly cites numerous examples of law from other countries and time periods. The Supreme Court justices often cite English common law and examine the laws of other countries in order to rule on American laws. One such example in this brief is a reference to how at the time Roe was created, only six other countries had laws permitting voluntary abortion after twenty weeks. Thus, even if the claim is made that Alito is referring to non-American law, that same law exemplifies that abortion is protected in similar ways by other governments, and should be taken into account in this decision. If law from other countries is used to argue against Roe, it should also be used to argue for it.

Moreover, the language in the brief suggests an amoral, apolitical stance on the part of the Supreme Court. In his final page, Alito notes that “Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office.” Seemingly, his remark implies that rather than taking a stance that would limit legislation, the Court is being generous in its release of the opinion to public decision. However, the self-appraising language that establishes the institution as apolitical is inherently false in the way the Supreme Court functions. The way in which any Supreme Court vacancy has been immediately met with a race to fill the seat prior to the end of a presidential term implies the opposite — that the Court is, in fact, politicized, no matter how much it tries to disprove this. The primarily Republican-nominated Court has a political interest in taking down Roe. They know that by punting the decision to state legislatures, about half of which currently have abortion ban laws on the books, their political stance will be upheld. Giving the legislative ability to states will uphold the Supreme Court’s political beliefs, regardless of whether or not they admit it. 

Ultimately, this draft opinion is just that — a draft. We don’t know if this will be the final decision of the Court, but even in its draft phase, it presents significant problems. How can we take seriously an opinion that egregiously limits the rights of pregnant people to determine the fate of their own bodies and also contradicts itself? Bodily autonomy is a freedom that should be legally protected. Stifling this right presents a horrific injustice to women and all people who can become pregnant. But whether or not Roe is overturned by this decision — and at this stage, it unfortunately seems like a real possibility — it is imperative that Congress steps in. If the Supreme Court wants to claim they are beyond politics and personal morals, despite evidence to the contrary, fine. But those who do have the power to use morals and politics in their decision — the federal legislature — must create a law protecting reproductive rights. It’s 2022. We should be beyond this.

Hailey Robbins is an Opinion Writer for The Cavalier Daily. She can be reached at opinion@cavalierdaily.com.

The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.

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