Should Have Seen It Coming

Spectator

By Stephen Tuttle | May 14, 2022

Pro-choice advocates should have seen it coming; Roe v. Wade has been a goner since Donald Trump nominated three Supreme Court justices.

Roe v. Wade, decided in 1973, was predicated on the notion that the 14th Amendment to the Constitution offers a right to privacy. The dots have never been that easy to connect, but a majority of the court decided the amendment’s section that specifies there can be no loss of liberty without due process equals the right to privacy. It’s a stretch, but a precedent that was reaffirmed in Casey v. Planned Parenthood in 1992, though with several permitted restrictions.

Justice Samuel Alito and four other justices were having none of it, and the draft opinion that was leaked overturns both Roe and Casey in their entirety and throws the issue back to Congress or state legislatures. Alito, who has been the very embodiment of the Angry White Male during his tenure on the court, authored the reversals in language that were absolutely dripping with contempt for both the decisions he found unconstitutional and the justices who supported them.

For example, he referred to the Roe decision as “egregiously wrong” and, in case you were wondering, egregiously means in a shockingly or outstandingly bad way. The language in his 95-page decision replaced judicious legalese with something bordering on open hostility.

Alito could find no right to privacy in the Constitution, much less a right to abortions. The majority apparently agrees with him, which would seem to put court decisions on gay marriage, contraception, and sodomy at risk since they were, in part, based on the right to privacy outlined in Roe. (SCOTUS might want to take a look at the Fourth Amendment’s language, which certainly seems to at least grant us some privacy from an intrusive government: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated…”)

Actually, neither Alito nor anyone could find much in the Constitution that gives women any rights at all. Our Constitution was written by white male property owners for white male property owners. Women were not part of the equation at all; they weren’t even given the right to vote in federal elections until 1920, so neither Alito nor any other justice is likely to find anything in the original document giving rights to women.

To be fair, none of the Trump appointees or Alito or Justice Clarence Thomas ever said they would support Roe during their confirmation hearings. All did clever little verbal and semantic dances around the question of their support for stare decisis, the legal doctrine that says litigation can be determined by previous rulings or precedent.

The Associated Press has been kind enough to catalog their testimony on this specific question.

Justice Amy Coney Barrett was asked by Senator Diane Feinstein if she would “support a law that has substantial precedent.” She answered that she would “...obey all the rules of stare decisis…” but that she did not believe Roe rose to the level of a “super precedent” that could not be overturned.

Justice Brett Kavanagh, asked by Feinstein for his opinion on a woman’s right to choose, did a remarkable linguistic two-step about the importance of precedent and that Roe had been reaffirmed in Casey so it was precedent upon precedent. But he did not say he would support Roe.

Republican Iowa Senator Chuck Grassley asked Justice Neil Gorsuch if he thought Roe was correctly decided. His non-answer informed us that Roe was a precedent of the court and it had been affirmed and a good judge would take that into account. He did not, however, share his own opinion.

Chief Justice John Roberts was the most clearly supportive of the idea of honoring precedent, and although he has been on the side willing to modify Roe, he has not supported undoing it completely, a position that apparently holds true now.

Justice Alito has never made much of a secret about his position on the abortion issue, publicly stating as far back as 1985 that he did not believe the Constitution included language supporting the idea of a woman’s right to choose. In fact, Alito seems to believe the Constitution is a static document and the words still mean exactly what they meant when they were first written. Absent specific text, Alito said he sees “...only rights deeply rooted in the nation’s history and tradition…” Yikes. That would seem to exclude a host of other rights granted in the 20th century.

Roe v. Wade is likely gone. The battle will move to Congress and state legislatures where half the states already have legislation waiting to ban abortions altogether. Pro-choice advocates watched while the anti-abortion legislative tide rose. They should have been preparing for Roe’s inevitable death.