In Judge Samuel Alito’s draft opinion that would overturn Roe v. Wade, what is perhaps most difficult for abortion rights advocates to bear is the implicit suggestion that the progress made by women is a reason to dismiss Roe. In a sense, it turns feminism against itself.
Roe v. Wade and Planned Parenthood v. Casey, the 1992 Supreme Court decision that reaffirmed the right to an abortion, were both based on the 14th Amendment freedom guarantee, which the court interpreted as protecting a woman’s right to choose terminate a pregnancy for free. unreasonable government interference. Roe said the interest of liberty included a right to privacy. Casey added that the right to choose if and when to have a child made it easier for women to “participate in the economic and social life of the nation”.
Justice Alito rejected this reasoning, arguing that the right to abortion is not a constitutionally protected liberty interest because it is not rooted in the country’s history and tradition. But that argument would actually reinforce the historical discrimination women face, as Julie Rikelman, the Mississippi abortion clinic attorney at the center of the Dobbs v. Jackson Women’s Health Organization, argued him in court in December.
And that would threaten many of the court’s constitutional decisions, such as Griswold v. Connecticut, the confidentiality ruling freeing married couples from the state restrictions on contraception that were the basis of Roe, and Obergefell v. Hodges, the same-sex marriage ruling. For now, Justice Alito’s draft “sharply distinguishes” some of these decisions from Roe. But who knows what will happen down the road?
Justice Alito also addressed the argument of proponents of abortion rights that, as he described it, “changes in society” require the right to terminate a pregnancy. But he boiled it down to a lukewarm phrase – that Roe and Casey advocates argue that without access to abortion, people won’t be able to “choose the kinds of relationships they want, and women won’t be able to compete with men in the workplace”. and in other businesses.
Missing here is the extensive social science evidence – which is crucial in linking abortion access to 14th Amendment freedom guarantees – that “Roe changed the arc of women’s lives,” as the supported a brief filed with the court by 154 economists and researchers. The legalization of abortion “has had significant effects on women’s education, labor force participation, occupations and earnings,” says their memoir, which Ms. Rikelman was careful to mention during the court argument in December.
The memoir also specifies that abortion continues to function as a lever for equality. Pregnant women are still denied accommodations at work, despite a 1978 law meant to protect them from discrimination. Women still suffer an economic “motherhood penalty”. And the financial effects of refusing an abortion, according to a major study cited by economists, are “as great as or greater than those of deportation, loss of health insurance, hospitalization, or death.” ‘exposure to flooding’ resulting from a hurricane.
Judge Alito did none of that. Instead, he devoted a long paragraph, filled with footnotes, to the arguments of opponents of abortion rights. He listed more tolerant attitudes toward pregnant women who are not married, state and federal laws that prohibit discrimination on the basis of pregnancy, family leave laws, health insurance, and government assistance to cover cost of having a baby. He also noted, as Judge Amy Coney Barrett did during oral argument in court, that shelter laws allow women to drop off babies anonymously.
Then, after putting his thumb on the scales, Judge Alito gave up choosing a side. “Roe and Casey supporters must show that the court has the power to weigh these arguments and decide how abortion can be regulated by states,” he wrote. “They failed to make that demonstration.”
And so, Judge Alito said, “we are thus returning the power to weigh these arguments to the people and their elected representatives”.
But the illusion Judge Alito created is clear in the way he laid out the arguments. The implication is that women no longer need the availability of abortion to be free, if they ever had it. (The Mississippi Attorney General was explicit on this point, saying in her brief that “the march of progress has left Roe and Casey behind” now that birth control and adoption are widely available.)
Judge Alito also twisted feminism when he tried to explain why stare decisis – the principle that the court must generally respect its own precedents – does not apply to Roe and Casey. Respect for precedent is important because people rely on the stability of the law to plan their lives. The long-standing validity of Roe and Casey meant that people could move around the country without fear of getting pregnant in a state that banned abortion.
But Judge Alito, disregarding the evidence regarding the benefits of abortion for many who have it, said it is “difficult for anyone – and particularly for a court to assess, namely, the effect of the right to abortion on society and in particular on the lives of women. »
He had one more card. Since the court would return the legality of abortion to the states, “women on both sides” could face off with everyone else at the ballot box. “Women are not without electoral or political power,” he dryly noted, pointing out that they tend to vote at higher rates than men.
In other words, protecting abortion, a constitutional right since 1973, would become women’s work after their freedom of choice is thrown into the dustbin of rejected case law. So much for the progress made by women.
Emily Bazelon is a staff writer for The New York Times Magazine and author of “Charged: The New Movement to Transform Prosecution and End Mass Incarceration.”