MOVE OVER JUSTICE TANEY; OR, ALITO'S CRI DE COEUR FOR A RETURN TO THE LIKES OF DRED SCOTT, PLESSY V. FERGUSONAND KORAMATSU
They will do anything for the unborn, but once you're born, you're on your own. George Carlin
The Republicans are doing everything they can to stop women from having control over their own bodies and doing nothing to stop the carnage against kids. Maureen Dowd
Judges have to have the humility to recognize that they operate within a system of precedent John G. Roberts, Jr. at his confirmation hearing
[Stare decisis is]important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. Samuel A. Alito at his confirmation hearing
Adherence to precedent is necessary to 'avoid an arbitrary discretion in the courts . . . .' Chief Justice Roberts (quoting The Federalist No. 78 (Alexander Hamilton))
We can still hope that Justice Alito's draft opinion in the Mississippi abortion case (Dobbs v. Jackson Women's Health Organization), which would overrule Roe v. Wade (and Planned Parenthood v. Casey) in disregard of precedent and the rule of stare decisis, which ordains the following of prior decisions, doesn't hold up, but given the Court's composition (the agenda of the Court's five most conservative Justices is so far outside the legal mainstream that even Charles Fried, Reagan's conservative solicitor general, called it "reactionary") that seems unlikely. If Alito prevails, this decision will undoubtedly be seen as one of the worst, if not the worst, in the Court's history, ranking alongside Chief Justice Roger B. Taney's Dred Scott decision in 1857 (the Constitution was not meant to include American citizenship for people of African descent, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them), Plessy v. Ferguson in 1896 (racial segregation laws that provide for separate but equal facilities do not violate the Constitution) and United State v. Korematsu in 1944 (exclusion of Japanese-Americans from the West Coast Military Area during WW II does not violate the Constitution) (one could throw in Bush v. Gore as well). In both its conclusion and its reasoning it would be a dark blot on the reputation of the Court for making judgments on the basis of the application of neutral principles of law rather than on the personal bias, political sensibilities and ideologies of the Justices. It would give credence to any suggestion that the six conservative justices are no more than surrogates for the Republican Party and the Religious Right.
Alito's Arguments from the Draft Opinion
i) The Constitution makes no reference to abortion
ii) Roe v. Wade imposed a highly restrictive regime on the entire nation
iii) Roe was "egregiously wrong" from the start
iv) Roe and Planned Parenthood v. Casey (which upheld Roe) inflamed debate and deepened division
v) There has been an unbroken tradition in this country of prohibiting abortion dating back to the earliest days of the common law
vi) In Casey the Court came up with a phony reliance interest to justify upholding Roe as women's reliance on abortion is of a lower order than the reliance interests that arise in cases involving property and contract rights
vii) Elected representatives can decide how abortion should be regulated
viii) Women are not without electoral or political power
ix) The Court has overturned precedent in the past.
To anyone who has any familiarity with US Constitutional law such arguments would be comical if they weren't so pathetic. It's almost as if Alito (who is a smart man) wants to demonstrate that he can, and will, impose his personal religious and political views regardless of whether they are intellectually cogent or consistent with Supreme Court precedent or policy.
Response to the Arguments
i) There are many rights which the Court has determined or affirmed which are not mentioned as such in the Constitution . After all, if they were we would hardly need the Supreme Court to determine what they are. I am not fluent enough in Constitutional case law to name them all, but certain ones come to mind, such as the Miranda rule, one man, one vote, the right to have assigned counsel by the state in criminal cases when the defendant is too poor to afford one, and the right not to be subject to education in segregated public schools enunciated in Brown v. Board. The terms "due process" and "equal protection" by their nature do not lend themselves to specificity.
The right to abortion is what is known as an "unenumerated" right, meaning that it has constitutional stature even though there is no specific text in the Constitution referring to it. Such concept is well established in our constitutional system. The Ninth Amendment explicitly acknowledges the existence of such rights, stating that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So, as Kenji Yoshino, a professor of constitutional law at NYU Law School, points out, the question is not whether unwritten rights will be recognized, but which ones.
Just out of curiosity, I wonder whether the right to posses an AR-15 semi-automatic weapon pursuant to the 2nd Amendment would qualify as an unenumerated right for Justice Alito?
ii) Alito shows his true colors here when he refers to the Roe precedent as highly restrictive. It is only "restrictive" in the point of view of those who oppose abortion and wish to impose their religious views on others. It is the overruling of Roe which would be restrictive on the liberty of women to end their pregnancy by their choice. Keep in mind that no one is being forced to have an abortion.
iii) "Egregiously wrong" is pretty strong language, one might say rude, arrogant and injudicious, for reference to a Supreme Court opinion which has been followed as precedent since1973 and which was upheld in Casey in 1992. Alito would seem to want to ignore that Roe was a 7-2 decision and that five members of the majority were Republican appointees (a Republican appointee wrote the majority opinion) with only one dissent by a Republican appointee. Maybe only 9-0 decisions deserve to be considered for stare decisis treatment for Alito.
If Alito wants to overrule egregiously wrong decisions he might start with some he participated in, such as the Heller, Citizens United, Hobby Lobby and Little Sisters of the Poor cases.
iv) Roe and Casey inflamed debate and deepened division. This is really absurd. What does Alito think overruling Roe will do - bring peace and quiet? Did Brown v. Board in 1954? No - so should it be overruled? What about Swann v. Charlotte- Mecklenberg Board of Education in 1971 (busing for the purpose of desegregation is constitutional)? It is people like Alito and his fellow religionists and Republicans who have inflamed debate and deepened division and continue to do so.
v) Under common law as adopted in American colonies abortion was allowed until "quickening" which occurred when the pregnant mother first felt the fetus kicking. This would normally be toward the end of the second trimester. This continued in many states at the time of the 14th Amendment in 1868 which applied the due process and equal protection requirements on the states, and which Roe relies upon. Roe is consistent with this standard. In some states which subsequently imposed more restrictive rules, the changes were driven by those who were concerned that Protestant women, as distinguished from Catholic women and immigrant women, were having more abortions the consequences of which would change the national demographics, and by those who wanted to keep women in the home. Alito is giving us at best poor history, if not outright distortion. This is substantiated in the amicus brief filed by the American Historical Association and the Organization of American Historians in support of Jackson Women's Health Organization.
Perhaps even more to the point, the Court in the past has indeed said that unwritten rights would be recognized only if they were deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty. The draft opinion claims to be applying this test, but this approach would effectively freeze an 18th or 19th century understanding of rights in place. As Yoshino states, this approach is bizarre. In the Obergefell case in 2015, making same sex marriage a fundamental right, the Court transformed the role of tradition in discerning unwritten rights. It instead embraced an approach that "respects our history and learns from it without allowing the past alone to rule the present." The Alito opinion seeks to reinstate the shackles of history on the unenumerated rights inquiry. The opinion is not only an assault on abortion rights, but on same sex marriage, homosexual relationships and contraception as well.
As David Cole, National Legal Director of the ACLU, writes, virtually all the constitutional rights we enjoy today reach beyond those recognized by "history and tradition". If we were to limit rights to those enjoyed in 1791, when the Bill of Rights was adopted, or even to the late 1800s, when the Civil War Amendments (including the 14th Amendment) were added, many of the rights we take for granted would be in jeopardy. The Equal Protection Clause did not prohibit sex discrimination or racial segregation when it was ratified in 1868. Nor did the "liberty" protected by the Due Process Clause include the right to use contraceptives or to choose one's sexual partner or spouse regardless of gender or race.
Alito says abortion is different because it destroys potential life. However, that distinction has no logical connection to his reasoning. His argument is not that only rights that obstruct potential life are limited to those rooted in history and tradition.
As to the assertion that abortion destroys potential life, the key word is "potential", in this case, a "weasel" word to avoid having to grapple with the all-important issue of when life, or more properly, personhood, begins and what, in fact, it is that is being "destroyed". That issue will be addressed below.
Even if one were to accept Alito's version of history, the denial of these rights in the past was totally in derogation of the concept of ordered liberty. Such denial imposed a patriarchal system that expected women to remain at home, confined to the private sphere and governed by their families, their husbands and in-laws, and the concept of coverture, that is, that a married woman did not have a separate legal existence from her husband. As Amanda Taub has pointed out in the NY Times, Alito's opinion relies heavily on the reasoning of a 17th century English jurist that women's rights ought to be constrained so that they wouldn't encroach on men's rights too much. It is shocking that such reasoning can persist today. A central tenet of such a legal philosophy is that giving women legally enforceable rights over their own bodies is a threat to men's freedom. Sounds like the ridiculous claim that is being propagated today that whites are being discriminated against, as well as the incel ideology and the "great replacement" conspiracy theory.
Turning again to history, Taub points out that traditional gender roles became a central element of southern states' justification for white supremacy, including the Jim Crow laws, based on the supposed threat from which white women had to be protected. Preserving traditional gender roles thus became linked to protecting the racial hierarchy. Today, the framing by the Republican Party of Roe as a part of feminism and the Party's opposition thereto fits in with the Party's dedication to protecting and preserving existing hierarchies, both racial and otherwise.
vi) Again Alito shows his personal biases by denigrating women. To judge a woman's reliance on the right to abortion provided by Roe as of a lower order than reliance on property and contract rights would take us back to the 17th century. It is an argument hardly deserving of a response, but a quote from the opinion in Casey is worthy of note, "... people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail".
vii) This is a sort of a non-sequitur. Yes, of course elected representatives can decide how abortion should be regulated. So? Elected representatives can regulate away all sorts of rights - that's why we have the Reconstruction Amendments - so majorities in state legislatures can't take away fundamental individual rights.
But Alito is not so deferential to state legislatures when it comes to regulating guns or imposing health mandates. States can't regulate to protect living children from guns, but they can regulate to protect unborn children. Whatever happened to judicial integrity? Or just plain common sense? How can you claim that mandates for masks and vaccinations to protect the lives of others (as well as one's own life) restrict individual freedom, but that limitations on the right to choose whether to have a child do not?
viii) This seems to be merely a variation of item vii), and echoes the popular sovereignty argument of Stephen Douglas in his debates with Lincoln for the legality of slavery to be decided by popular vote of the residents of a State. One would have thought that such an approach would have been ended by the Civil War. In another such attempted return to the discredited past, some of the restrictions being contemplated by "red" states on travel to "blue" states to seek abortions reek of that era's Fugitive Slave Law.
ix) Alito cites some thirty decisions in which the Court overturned precedent, but it has been noted that the vast majority of those decisions expanded rights, a handful watered down rights protections, but none eliminated a right altogether. This only underscores how unprecedented the Dobbs case will be if it destroys a long recognized right.
Overruling Roe would also contravene long-standing Supreme Court policy that deference to precedent requires "special justification" for overruling an earlier decision, even if a majority of the Justices of the current Court disagree with it. In US v IBM in 1996, one of a line of cases enunciating this policy, the Court stated as follows:
"Stare decisis is a 'principal of policy' [citation omitted] and not 'an inexorable command' [citation omitted]. Applying that policy, we frequently have declined to overrule cases in appropriate circumstances because stare decisis promotes the even handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process [citations omitted]. '[E]ven in constitutional cases, the doctrine carries such persuasive force that we always have required a departure from precedent to be supported by some 'special justification' [citation omitted]" (emphasis added).
Ironically, this opinion was written by Justice Thomas, an outspoken advocate of overruling Roe.
Alito himself, apparently when it suits his cause at the time, makes the case for following precedent. In Ramos v. Louisiana, dissenting from the overruling of a precedent by the majority, he writes, "there has been massive and entirely reasonable reliance" upon such precedent, and further states that "stare decisis exists to promote . . . evenhandedness, predictability, and the protection of legitimate reliance."
Alito has cited no "special justification" for overruling Roe, the requirement mandated by Supreme Court policy, although, as indicated below, he makes a desperate and dishonest attempt to compensate for this omission.
Although the pro-choice lobby would like to take this opportunity to debate the pros and cons of the Constitutional right to abortion de novo, that is not what is legitimately at issue here. That question has already been addressed and answered in Roe almost 50 year ago when the Court determined that the Constitution provides women with a right to privacy which recognizes their freedom to choose not to carry a pregnancy to term, subject to certain limits in the later stages of pregnancy. The issue in Dobbs, as in any case involving the prospective overruling of precedent, is, or should be, whether anything has taken place in the intervening period following the original decision which would justify changing the ruling of law in such case. The burden of proof in making such a showing is on the party or parties seeking such change. In Dobbs they (and Alito in his draft) have failed to do so. The considerations which are relevant to making such a determination are the following:
(a) has the rule established in the case whose precedent is being challenged proven to be intolerable in defying practical workability?
(b) is there so little reliance on the rule that no hardship would result as a consequence of it being overruled?
(c) have related principles of law subsequently developed which have left the rule no more than a remnant of abandoned doctrine, an anachronism, or has there been a significant change in, or subsequent development of, constitutional law?
(d) have facts so changed or come to be seen so differently as to have robbed the rule of significant application or justification?
The answer in all instances is clearly "no". That should be the end of the matter. It is not enough that the people who opposed the rule in the first place want to relitigate it. The Court has spoken. You don't get a "do-over" just because the composition of the Court has changed. But that is just what Alito is attempting to do (which raises questions as to his judicial integrity and impartiality).
When Does Life Begin
As noted immediately above, Dobbs is not, or should not be, an abstract debate about the relative merits of the arguments of the pro-choice and pro-life movements as to (i) whether the 14th Amendment to the Constitution allows a government to violate a woman's right to privacy and invade her bodily integrity by taking away her procreative control and forcing her to carry a pregnancy to term against her will, and (ii) whether personhood protected by the 14th Amendment commences at conception. We are past that point. Those questions were resolved in Roe, as modified in Casey, in the negative. And there is no "special justification" for overturning them. Rather Dobbs turns on, or should turn on, the nature of the judicial process, the establishment of legal norms in a democratic society and the finality of judicial decisions.
However, since Alito, motivated by his political and religious biases, is clearly not going in this latter direction, it may be worthwhile to analyze on the merits the fundamental substantive argument of the pro-life position in such debate, the claim that abortion destroys life. (Even such conservative constitutional giants as Justice Scalia and Robert Bork criticize Roe only on the ground that it recognizes a 14th Amendment right to abortion through the right to privacy, not that it rejects the existence of constitutionally protected personhood from conception. In fact, they would deny personhood while the fetus is still in the womb.)
This is the so-called moral issue that anti-abortion advocates argue justifies their opposition to the right of a woman under the 14th Amendment to determine herself as to whether to bring a pregnancy to term. The pro-lifers claim that they are saving the life of an "unborn child" (while ignoring the impact on the life of the prospective mother of the bodily burdens of pregnancy, the destruction of her right to procreative control and her interest in sex equality; Linda Greenhouse has even suggested that forcing a woman to carry a pregnancy to term could be treated as "involuntary servitude" in violation of the 13th Amendment). The issue as to whether abortion results in the taking of a life should be resolved on the basis of medical science, and should stand or fall on that basis alone, not on the "morality" of abortion as such. This is not to say that the taking of a life is not a moral issue, but that the "moral" issue is a disguise for a political/religious issue, and that the question can only be resolved by a medical determination as to when "life" begins. That is, is abortion the taking of a life? If so, we would be faced with an issue falling under the rubric characterized by Isaiah Berlin as value pluralism, where two universal rights are in conflict with one another. We are spared this dilemma fortunately by the fact that, as demonstrated below, constitutionally protected life does not begin at conception, and therefore there is no basis for denying a woman her constitutional right to abortion by overruling Roe. (It is ironic, if not hypocritical, that the opponents of abortion usually have no qualms about the taking of life via the death penalty or about the loss of lives through their failure to regulate gun purchases, which issues for them apparently have no moral components.)
But this characterization of the pro-life issue is misleading, at best. The underlying premise of the pro-life movement is, for the most part (there is a strong flavor of misogyny as well), a religious one, evincing the crusade of the Christian Right, whether evangelical or Catholic, to impose its religious views and rules as to the family and the role of women in society as a whole. These seem to derive from their reading of the Bible (for what it is worth, and questionable at that) and their ideas about, and seeming obsession with, sex and sexual morality, i.e., no pre-marital intercourse, no sexual relations outside of marriage or for any purpose other than to propagate, no same sex marriage, no marriage of blacks and whites, the "sin" of being gay. Prohibiting abortion furthers such causes as dictated by these beliefs. In reality this is about the attempt to create a theocratic state. Alito's draft opinion is as much about that as it is about abortion. It implicitly bolsters his view that "religious liberty is in danger of becoming a second-class right" (see his speech at the Federalist Society in November 2020).
In fact, even on religious grounds the Christian Right contention that life begins at conception is an outlier. In Islam the prevailing view seems to be that life begins only upon ensoulment, which occurs 120 days after conception. Thereafter abortion is the taking of a life and is prohibited other than to protect the life of the mother, but prior thereto abortion is permitted. It has been stated that in Jewish thought it is widely accepted that as long as a fetus is in the womb, it has potential, but not full personhood. Another commentator has said that Jewish law was consistent with life beginning at birth. Given Alito's stated concern with the loss of religious liberty, why does he not treat the denial by States of the right of Jewish and Islamic women to choose to have an abortion granted by their religions as a deprivation of religious liberty? How does this differ in principle from the affirmation by the Supreme Court of the right of employers to deny providing health insurance for birth control to their employees based on the religious beliefs of such employers? Is the denial of abortion rights not an infringement on the free exercise of religious belief? Is this not a violation of the separation of church and state? Is this not the imposition of one set of religious beliefs over another?
Even if one disregards the disingenuousness of the pro-life claim that they are attempting to save lives (not of the mothers, of course, but of "unborn lives", an oxymoron if there ever was one), the proposition fails on its own terms if one views it from a medical standpoint and actual practice. The relevant question is not whether or not one is pro-life, but "when does protected 'life' begin"?
Let's start with some basic numbers. In the United States in 2019 (the latest year for which I could find such data), 92.7 % of abortions were performed in the first trimester, that is, 13 weeks; 6.2 % were performed within 14-20 weeks, and less than 1% within 21 weeks or more. 42.3% were early abortions, that is, within 9 weeks. Even then it has been suggested that one reason for abortions after the first trimester is only because of the barriers to abortion in the U.S. It takes time to save money for the procedure, or to arrange transportation, child care and time off from work to travel to a clinic if one is not nearby.
One standard for the beginning of life is viability of the fetus, which is the point at which a fetus can survive outside the womb. This is generally presumed to be at 24 weeks, but apparently it can be anywhere within 20-26 weeks. Thus there is a cogent argument that less than 1% of abortions take a "life" by this standard. Even in those cases there may be instances in which the mother's life or health was at stake or the fetus had to be aborted for other medical reasons.
Another, and more convincing approach (although reaching a similar result), is that a human life begins only at the time the fetus develops the infrastructure necessary for consciousness rather than mere viability. It is only then that it can arguably be considered a person, or at most a proto-person, not yet an individual. This requires a sophisticated network of highly interconnected components and nerve cells. Its physical substrate, the thalamo-cortical complex that provides consciousness with its highly elaborate content, begins to be in place between the 24th and 28th week of gestation (thank you, Scientific American). More specifically, the thalamus, which is necessary for pain and conscious perception, does not appear until the end of the second trimester.
In the first few weeks of development human embryos are indistinguishable from fish or bird embryos. For many weeks after that they are recognizable as mammalian embryos, with a heart and a basic brain, but anatomically no different from mouse or pig embryos at similar gestational stages. It is only after week 8 that the first rudimentary brain activity, the kind that is observed in organisms as simple as insects, can be observed. The very beginnings of our higher brain structures only start to appear between weeks 12 and 16, and the coordinated brain activity required for consciousness not until 24-25 weeks. The cerebral cortex which is necessary for consciousness becomes operational after 25-32 weeks of gestation. Thus, consciousness, albeit not yet personhood, cannot rationally be deemed to exist before approximately the end of the second trimester at the earliest. It is only then that the fetus can be argued in any rational sense to have acquired the moral status of a life entitled to protection.
Putting this in a different perspective, there were about 625,000 abortions in 2019, about 195 abortions per 1000 live births. If less than 1% of these abortions took place after the second trimester that would be at most 6,250 "lives" ended, including those required to preserve the life or health of the mother or for other medical reasons. A life is a life but how does this compare with 45,000 gun deaths in 2020, including 24,000 by suicide.
A third, and most convincing, standard is that life begins at birth. There is much to be said for this standard which, among other things, is much more precise than the other standards set forth above. It has the legal and practical virtues of being clear, practicably usable, and universally salient and recognizable. It is not without reason that we date the age of humans from the date of birth.
The mass of mental content to which the neonate is exposed on birth are in fact essential components for developing conscious experience, memory and emotion, which form the basic material for subjective self-conscious thought and experience - in other words the objects of conscious life to which the new human must be exposed before it can develop sensory reaction and a sense of itself as opposed to the rest of the world; when it becomes aware of itself as an individual entity, a separate being different from nature and other people. Even this stage is not yet fully reached at birth, but it cannot take place before birth.
The neonate no longer draws its basic life support from its pregnant woman and depends on her for survival. Its presence in the world is no longer mediated through the body of the pregnant woman. This separate embodiment enables the neonate to be drawn into the social world of others in ways previously not possible; in short, to be treated as a member of the social community in ways that are precluded by its social estrangement when enclosed in the womb, and which entitles it to the protections mandated by society through its moral and legal rules.
Birth corresponds to a development of momentous significance socially, biologically and psychologically, in that it places the new human being in the necessary context for the development of conscious life, a sense of self, agency.
Let's look at the ruling in Roe. In that case, the Court ruled that the States could place no restrictions on a woman's right to choose to abort during the first trimester. From the second trimester on the States could enact medical regulations on abortion procedures so long as they were narrowly tailored to protecting the mother's health. From the third trimester on a State could legally prohibit all abortions except when necessary to protect the mother's life or health (thus rejecting birth, except in the case of risk to the health of the mother, as the beginning of life entitled to protection). For the most part this conforms to the medical analysis as to viability of the fetus or the underpinnings of consciousness in its determination of personhood. Casey modified Roe to some extent by dropping the trimester structure, but left the woman's right of choice intact through viability, while providing less restrictive limits on the State's ability to regulate. As noted above, neither viability nor preliminary consciousness generally take place before the end of the second trimester and in practice 99% of abortions take place within 20 weeks so the rules of Roe and Casey effectively conform to medical science as to the minimal standards for determining the beginning of "life" deserving of protection under the Constitution.
Roe and Casey do not accept the pro-choice argument that life begins at birth (which is the most realistic, convincing and ideal solution), but also reject the pro-life notion that life begins at conception while accepting the argument that a right to life occurs at some point short of birth, and thus limit their rulings to application of the minimal standards for ascertaining the beginning of "life" as determined by medical science. One would think that this would would be an acceptable resolution of any purported constitutional conflict between the mother's right to freedom of choice and the nascent human being's right to life, leaving aside the ongoing battle of the degree of regulation the States can impose before viability.
But not if Alito gets his way. From a medical standpoint (and intellectually) the opposition to abortion as the preservation of "life" starting from conception as argued by the pro-life lobby is without merit, but Alito and his conservative allies on the Court are prepared to ignore science and precedent to impose their religious and political views on others. Nor, if they are successful, will the pro-life movement stop at that. They will move on to the next stage, banning birth control and contraception, with Griswold v. Connecticut (the 1965 case establishing the right to privacy and declaring that married couples had a constitutional right to use contraception) in their sights (see the NY Times, June 14, 2022). Individual State bans of abortion will not be sufficient for these religious zealots, once referred to by a fellow Republican as "the people who brought you the Spanish Inquisition and the Salem witch trial." As Mary Zeigler, a law professor at the University of California Davis School of Law, has stated, "anything short of a nationwide abortion ban will not satisfy them."
Alito's Race Card
The weakness of Alito's rationale for overruling Roe as a matter of law, history, medical science and Supreme Court policy is such that he apparently feels the need to try to smear the pro-choice movement with an ahistorical argument (buried in a footnote), by citing an amicus brief (filed by a small group of evangelical leaders and conservative organizations) and a concurring opinion by Justice Thomas in an earlier case linking the right to abortion to the historic eugenics movement and racist campaigns to limit Black reproduction (relying on the fact that Planned Parenthood founder Margaret Sanger supported both abortion and eugenics), thus reframing the opposition to abortion as racial justice. Historians of the eugenics movement consider the Thomas argument "deeply flawed" and that it "distorts history in the service of ideology". That doesn't seem to have deterred Justice Alito.
Because the logic of Alito's argument for overruling Roe and Casey is so weak and without merit, he is grasping wildly for the "special justification" that has repeatedly been mandated by the Court to justify overruling a precedent (as described in ix) above), and which is otherwise lacking in his opinion. In doing so he has shamefully abandoned any semblance of integrity or objectivity to seek the cover of the false claim of abortion as "racial injustice" as a rationale for overruling Roe.
Conveniently for his argument, he neglects to note that, as Melissa Murray points out in a 2021 article in the Harvard Law Review, Black women were historically especially vociferous in their desire for broader access to contraception and abortion, and that Black civil rights groups today overwhelmingly support abortion rights. Omitted also is any reference to the statistics in a brief filed in the case by 18 civil and women's rights groups, including the NAACP Legal Defense and Education Fund and the League of Women Voters, that abortion legalization in the 1970s led to a 9.6% increase in Black women's college graduation rate and that abortion access resulted in a 6.9% rise in Black women's labor market participation rate - three times higher than for women generally. According to a Pew survey in 2021, 67% of Black adults supported a right to abortion in all or most cases.
Laws of Other Countries
The laws of other countries, of course, do not bind the U.S. Supreme Court, but they may be of interest in considering the "moral" claim of the pro-life movement, irrelevant as such claim may be to determining whether to overrule Roe.
Since 1994 just three other countries have rolled back abortion rights, all Catholic countries. In that period 59 countries have expanded abortion rights. If Roe is overturned, any States that ban or severely limit abortion at all stages of pregnancy, as roughly half are expected to, would join a minority of countries that prohibit it.
The vast differences in treatment of abortion worldwide suggest that there is no universal consensus that abortion in the first trimester or prior to viability is the taking of a "life". It would appear that countries with 60% of the world's population and 75% of women of reproductive age permit abortion, although with some cutoff, usually at the end of the first trimester with further exceptions in many cases. Thus, it is clear that the great majority of nations recognize that life does not begin at conception, with varying views as to when it does begin, but certainly not before the first trimester. As such, even a claim as to be preserving of a life falls short of any universal agreement.
* * *
In short, Roe and Casey hold up well, and overruling cannot be justified on any grounds, legal, medical or moral.
