So, in keeping with a line of cases most recently exemplified by Washington v. Glucksberg (a right-to-die case), Alito demanded of the respondents (Jackson Women’s Health) that they establish not merely that bans on abortion were an imposition on liberty, but that there existed constitutional and statutory resistance to such bans at the time of the drafting of the US Constitution, or, failing that, at the time of the passage of the 14th Amendment upon which pregnant persons rely to defend against state and local limitations on the right to choose for oneself whether to carry a pregnancy to term or to seek an abortion.
Alito found that there was no constitutional or statutory resistance to abortion bans established by 1789 or even by 1868. And he has some examples to back that up. Let’s not fool ourselves that there’s no such thing as a coherent argument against a federal constitutional right to abortion in the USA. I think it’s a bad argument, but it’s at least coherent. Alito isn’t Marjorie Taylor Greene or Paul Gosar or Rand Paul.
But the historically-based reasoning of Glucksberg as employed in Alito’s decision leaves out crucial context, and that is that while abortion rights were not protected before the civil war, and while the law journals of prominent law schools didn’t have published articles asserting or even requesting a defense of abortion rights until after World War II, the people tasked with protecting rights – the appellate judges and ultimately the supreme court justices of the United States – included 0 women until 1934, when one woman was appointed to 1 circuit court of appeal. It wasn’t until after World War II that there was a single federal trial judge in the district courts.
To put it bluntly: the right to abortion has been protected for longer than women have been permitted to sit on the Supreme Court of the United States. To this day we have never had a woman Chief Justice of the Supreme Court of the United States.
The reasoning of Roe has frequently been criticized as muddy, but when I read Roe, one thing that I believe those 8 men were trying to examine is, “Would abortion rights have been considered fundamental if women were considered people, considered valid authorities able to determine as well as men what was necessary for the ‘ordered liberty’ the court categorizes as essential to the democratic functioning of the United States?”
Alito would have us skip that question. Alito ignores that women were not considered persons, capable of contract and of holding property. Women were not considered capable of democratic self-determination throughout the period Alito examines. To expect the record of a country’s history during which women were not allowed the right to choose anything for themselves to reflect deep respect for a woman’s right to choose pregnancy or abortion is the grossest perversion of honest investigation.
Alito attempts (in at least one place that I remember from my first reading of this draft Dobbs decision) to distinguish the question of abortion as a question of so-called “substantive due process” and thus as a question of whether or not abortion is “intrinsic to ordered liberty”, meaning that it was a liberty with a “deeply rooted” history of legal protection within the early history of the United States and its forerunner colonies. He goes as far as to say that being pregnant is not a “sex based classification” for the purposes of the court. The import here is that he is trying – most desperately – to avoid any equal protection argument.
But the truth is that the very concept of “ordered liberty” fraught with equal protection problems for an originalist such as Alito. How can one say that the worship practices of Santeria are protected under such an analysis. For if you examine the record of protections (or lack thereof) for traditional African spiritual practices, you will find that Santeria is no more a religious classification than being pregnant is a sex-based one. Why, then, should a First Amendment analysis apply? And why should Santeria practitioners expect their practices to be protected equally with those of Catholicism’s practitioners? The history tells us that Santeria was not a “religion” in the meaning of the framers, and further that protection of Santeria cannot now be granted on the basis of the 14th amendment since there is no history of protecting its practices before the US civil war. One might attempt an equal protection argument, but Alito’s reasoning is clear: equal protection only applies when discussing two classifications within the same larger category. With Santeria determined not to be a religion to the minds of the elite landed men during the early history of White North America, there is no religion to which Santeria can be fairly compared.
In short: equal protection and “ordered liberty” cannot be fully divorced, and the plain language of the 14th Amendment prohibits much that was quite normal (and normalized) at the time. Different levels of analysis (rational basis tests, strict scrutiny, intermediate scrutiny, and even “rational basis with teeth”) seem to arise in US Jurisprudence more to excuse the court from the responsibility of applying the obvious meaning of this most modern-relevant Reconstruction amendment than they do in order to justify applying the power of the courts.
Glucksberg and its predecessors were never cases with which I was happy, but Alito’s decision in Dobbs makes clear exactly where they lead: to an artificial parsing of liberty, of due process, of privileges and immunities, as separate from the context of equal protection -a guarantee contained within the very same sentence. Dobbs is an immediate threat only to rights supported by precedent drawing upon the Due Process clause, but the longer term threat comes from this notion that due process can be fully explored, explained, and protected without reference to the entirely separate concept of equal protection. And in this Originalist separation we find that liberty is exactly what the drafters of the constitution thought it was: a privilege of white men.
I leave the final thoughts to the incomparable Pamela Means:
