I have been reading over the Alito draft majority opinion on the Dobbs v Jackson Women’s Health Organization case (https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf). There seem to be two major problems with Alito’s reading of Roe v Wade:
1) Alito constantly stresses legal exceptionalism towards the case of abortion because it involves potential life and thus completely ignores a women’s right to have control of her body. Alito uses the idea of potential life to ignore the constitutional examples that protect the individuals right to have autonomy over the body.
2) There is great evidence that Alito has undermined and ignored the importance of the question of the female’s right to control her body and decide when or when not to have a child. Alito’s reading of constitutional history is problematic and his reading of the consequences of abortion limited.
Analysis
1) Alito constantly stresses legal exceptionalism towards the case of abortion because it involves potential life and thus completely ignores a women’s right to have control of her body. Alito uses the idea of potential life to ignore the constitutional examples that protect the individuals right to have autonomy over the body.
If we reframe the constitutional question of abortion first and foremost as the question of the women’s right to control her body after she gets pregnant then these examples are perfectly valid.
On page 32, Alito writes that because of the potential life involved with abortion ‘none of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion’. On page 62, Alito writes ‘even the Casey plurality recognised ‘abortion is a unique act’ because it terminates ‘life or potential life’.
Alito uses the argument of potential life to reject all claims on the consequences of child birth on the ‘potential life’ of the mother, thus rejecting the constitutional examples used in Roe vs Wade 1973 that asserted the right to individual autonomy and control of the body.
On page 45, Alito rejects the following examples used in Roe vs Wade in 1973: ‘Loving v Virginia, 388 U.S 1 (1967) (right to marry a person of a different race)… Skinner v Oklahoma, 316 U.S 535 (1942) (right not to be sterilised); Griswold v. Connecticut, 381 U.S. 479 (1965)(right of married persons to obtain contraceptives); Eisenstadt v. Baird, 405 U.S. 438 (1972) (same, for unmarried persons)’.
2) There is great evidence that Alito has undermined and ignored the importance of the question of the female’s right to control her body and decide when or when not to have a child. Alito’s reading of constitutional history is problematic and his reading of the consequences of abortion limited.
Alito’s historical reasoning supporting the unconstitutionality of abortion is problematic. Firstly, Alito rejects abortion as being part of ‘the nation’s history’ after the evaluation of 37 legal cases on abortion, 35 of which were between 1825 and 1883, and 36 of which took place before women had the right to vote in 1920 and therefore were unrepresented in American politics and politically powerless. Secondly, Alito fails to acknowledge the political powerlessness of women at the time of the creation of the 14th amendment in 1866 writing on page 29 ‘recall that at the time of the adoption of the Fourteenth Amendment, over three quarters of the States had adopted statuses criminalising abortion, and that from the early 20th century until the day Roe was handed down, every single State had such a law on its books. Are we to believe that the hundreds of law makers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?’. Given that women were completely disenfranchised when these laws were made and there were no women in the legislative it would be a very accurate suggestion that the law was actively unrepresentative and hostile towards females. On page 61, Alito himself recognises the importance of female enfranchisement towards the political and legislative representation, rejected in the previous statement on page 29, writing ‘our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issues to seek affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power’.
Alito explicitly rejects the constitutions ability to determine rights on a woman’s ability to control her body and decide when or when not to have a child because of the variety of potential outcomes as a result of abortion. On page 54 Alito writes ‘they all call on the courts to examine a law’s effect on women, but a regulation may have a very different impact on different women for a variety of reasons, including their places of residence, financial resources, family situations, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions. In order to determine whether a regulation presents a substantial obstacle to women, a court needs to know which set of women it should have in mind and how many of the women in this set must find that an obstacle is “substantial”’. Alito excuses the constitutions responsibility on the subject of abortions because there are a variety of outcomes in seeking an abortion and therefore ignores the most fundamental power given through the legalisation of abortion which is the legality of allowing women, regardless of ‘residence, financial resources, family situations, work and personal obligations, knowledge and fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions’, to have the ability to control their bodies after they get pregnant.
Here 