Alito Draft Dismisses Americans’ Reliance on Abortion Rights
ItThree weeks have passed since the release of a draft opinions. Dobbs v. Jackson Women’s Health Organization—the pending Supreme Court case that could end abortion rights in America as we know them. Justice Samuel Alito’s draft pronounces Roe v. Wade the 1973 decision recognizing a constitutional right to terminate a pregnancy, “egregiously wrong from the start.”
Disdainful of a right which has stood for 49 year, they DobbsOverrules draft RoeAlong with the follow-on 1992 decision Casey vs. Planned Parenthood. The weaknesses of the draft are many: a shockingly narrow view of constitutional rights; an insistence that killing “an unborn human being” poses a “critical moral question” with no acknowledgement that commandeering wombs might raise an ethical quandary, too; reasoning that, despite dubious disclaimers, puts other rights—including contraception, sexual intimacy, and marriage equality—at risk.
Another flaw in the draft that has been overlooked is its specious claim that Roe hasn’t Really impacted Americans’ lives, so there’s no good reason for the court to stand by it. The jarring ways in which individuals’ lives and relationships will be disrupted if this half-century-old precedent falls—a factor the Justices call “reliance interests”—came up repeatedly in the December 1 oral argument, with Solicitor General Elizabeth Prelogar arguing that scrapping the right to abortion would upend “societal reliance and what this right has meant for further ensuring equality.” But it barely makes an appearance in Alito’s draft.
The Supreme Court’s decisions are something Americans can rely on. However, historically the Justices were cautious about cancelling them. As Justice Antonin Scalia once explained, “The doctrine of stare decisis protects the legitimate expectations of those who live under the law.” The idea that reliance considerations are central to stare decisis and indeed to the rule of law has a long pedigree. In 1815, the court explained that a prior ruling “should always be adhered to” when overruling it would upend contractual arrangements. In 2019, Justice Alito himself wrote a majority opinion sticking by a longstanding “chain of precedent linking dozens of cases over 170 years” in a case about the double jeopardy clause of the Fifth Amendment. But when it comes to erasing abortion rights, Alito’s draft breezily asserts that Roe has created no “concrete” reliance interests for Americans. Then it disappears.
Alito’s reliance analysis—which occupies a scant two pages of his 98-page opinion—starts with a sleight of hand and ends with hand-waving. Alito begins his reliance analysis by asserting: Casey “conceded” that “traditional reliance interests were not implicated” in a potential withdrawal of abortion rights. This is an grossly inaccurate description. Casey. Alito attempts to link the argument to Justices who upheld RoeThis was no concession. It was an a counterargument the court “imagine[d]” a critic might raise and that “may appear” to undercut a reliance claim when it actually does nothing of the sort. Here’s the (flawed) idea: new abortion bans may not upend expectations, “the argument might run,” because individuals and couples can simply adjust their expectations and reproductive planning accordingly.
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That argument was described by the Justices in CaseyIt was precisely to refuse it. They argued that the court must honor it. It’s not just aboutReliance on terms and conditions of commercial contracts is not recommended. Also in the context of a social contract around which “people have organized intimate relationships and made choices that define their views of themselves and their places in society.” In the decades since RoeMillions have come to trust, the Casey court wrote, on “the availability of abortion in the event that contraception should fail.”
Alito tries to get around this common-sense account of abortion-rights reliance–at the very least as a backstop in the event of contraceptive failure–by calling it “intangible” and quoting Chief Justice William Rehnquist’s Casey dissent. The court is not equipped, Rehnquist wrote there, to weigh “generalized assertions about the national psyche.”
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An example of why? Roe’s reliance interests are far from “intangible.” Imagine you and your partner bought a home last year and settled down in Tulsa, Okla. One expectation you had going in, so engrained that you may not have even given it a thought, is that an unexpected pregnancy or a failure of birth control would not obligate you to bear a child. Then on May 25, Oklahoma’s governor signs the most draconian abortion law in the nation: a privately enforced ban from the moment of fertilization. It is possible that in the following weeks it will be. DobbsOfficially dropped, Supreme Court blessings the prohibition along with all other nationwide ones as being perfectly in line with constitution. All assurances of reproductive autonomy at your home will be dissolved.
Consider a senior high school student who sent in a deposit on May 1 to receive a college education in Ohio. On May 2, he discovered that the college had been canceled on the night of the DobbsIt is possible that she might not be entitled to reproductive rights in Ohio, where she will study for four years. (Ohio had passed abortion bans that were blatantly illegal in the past, only for them to be blocked by the state as they violated of Roe. In anticipation of Roe’sRepublican lawmakers introduced a private, quasi-total ban that was similar to the ones in Texas and Oklahoma. The student realizes that she may be just one condom away from becoming a mother or being subject to sexual assault before she finishes college. These are real concerns. These concerns are not abstract. DobbsThe majority will hold that concrete concepts of individual autonomy, which have been in place since the birth of nearly all Americans under childbearing age, will soon be destroyed.
Justice Alito’s views on such concerns? He points to passages in briefs on each side and observes the “passionate” and divergent views on “the effects of the abortion right on the lives of women.” Justices, he says, have “neither the authority nor the expertise to adjudicate” these disputes. That’s up to state legislatures.
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But peruse the briefs and here’s what you will find: From those opposed to abortion, doubt that abortion rights had anything to do with advances in gender equality over recent decades because there are many other contributing factors; from supporters of abortion rights, ample research allaying those doubts. A brief from dozens of prize-winning economists finds that every year 6% of American women ages 15 to 34 “are likely to experience an unintended pregnancy,” and makes clear that access to legal abortion has had a significant and positive impact on “women’s education, labor force participation, occupations, and earnings.”
An individual constitutional right has never been pulled out from under Americans’ feet before. It is possible to make a donation if Dobbs goes the way Alito’s draft is pointing, the fallout will be significant and wide. Among the wreckage will be the Supreme Court’s longstanding principle that precedents on which millions of Americans rely should not be casually tossed aside.
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