Of Course the Constitution Has Nothing to Say About AbortionJill Lepore The New Yorker
There is no mention of the procedure in a four-thousand-word document crafted by fifty-five men in 1787. This seems to be a surprise to Samuel Alito.
Because these facts appear to surprise Alito, abortion is likely to become a crime in at least twenty states this spring. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote, in a leaked draft of the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization. The draft decision, which Politico published on Monday night, would overturn Roe v. Wade, the 1973 decision legalizing abortion. Chief Justice John Roberts, promising an investigation, has not denied its authenticity. Five Justices have reportedly voted in accordance with the draft: Alito, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are sure to dissent. Roberts is not likely to concur. One theory has it that whoever disclosed the draft is trying to make it more difficult if not impossible for Roberts to recruit a defector from the majority. But, of course, this remains unknown.
About as wholly speculative as the question of who leaked this decision is the history offered to support it. Alito’s opinion rests almost exclusively on a bizarre and impoverished historical analysis. “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text,” he argues, making this observation repeatedly. Roe, he writes, was “remarkably loose in its treatment of the constitutional text” and suffers from one error above all: “it held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.
Alito cites a number of eighteenth-century texts; he does not cite anything written by a woman, and not because there’s nothing available. “The laws respecting woman,” Mary Wollstonecraft wrote in “A Vindication of the Rights of Woman,” in 1791, “make an absurd unit of a man and his wife, and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher.” She is but a part of him. She herself does not exist but is instead, as Wollstonecraft wrote, a “non-entity.”
If a right isn’t mentioned explicitly in the Constitution, Alito argues, following a mode of reasoning known as the history test, then it can only become a right if it can be shown to be “deeply rooted in this Nation’s history and tradition.” As I have argued, the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then. Especially important is the question of who was enfranchised at the time of the ratification of the Fourteenth Amendment, in 1868, the nation’s second founding, since many arguments defending abortion rights (and many other rights, too) turn on the equal-protection and due-process clauses of that amendment. Here, too, Alito is baffled to discover so little about abortion and women. Referring to the advocates for Jackson Women’s Health Organization and to amicus briefs like one signed by the American Historical Association, Alito writes, “Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century—no state constitutional provision, no statute, no judicial decision, no learned treatise.”
He might have consulted the records of the U.S. Senate from the debate over the Fourteenth Amendment, when Jacob Howard, a Republican senator from Michigan, got into an argument with Reverdy Johnson, a Democrat from Maryland. Howard quoted James Madison, who had written that “those who are to be bound by laws, ought to have a voice in making them.” This got Johnson terribly worried, because the Fourteenth Amendment uses the word “person.” He wanted to know: Did Howard mean to suggest that women could be construed as persons, too?
MR. JOHNSON: Females as well as males?
MR. HOWARD: Mr. Madison does not say anything about females.
MR. JOHNSON: “Persons.”
MR. HOWARD: I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children are not regarded as the equals of men.
Alito, shocked—shocked—to discover so little in the law books of the eighteen-sixties guaranteeing a right to abortion, has missed the point: hardly anything in the law books of the eighteen-sixties guaranteed women anything. Because, usually, they still weren’t persons. Nor, for that matter, were fetuses.
I don’t happen to think Roe was well argued. I agree with Ruth Bader Ginsburg’s early analysis—that grounding the right in equality rather than privacy might have been a sounder approach. I’m not even a hard-liner on the question of abortion; I find it morally thorny. But, when Samuel Alito says that people who believe abortion is a constitutional right “have no persuasive answer to this historical evidence,” he displays nothing so much as the limits of his own evidence. “The page of history teems with woman’s wrongs,” as the nineteenth-century abolitionist Sarah Grimké once put it. It does not teem with women’s rights. To use a history of discrimination to deny people their constitutional rights is a perversion of logic and a betrayal of justice. Would the Court decide civil-rights cases regarding race by looking exclusively to laws and statutes written before emancipation?
At the close of the opinion, Alito congratulates both himself and the Court that, with this ruling, they are enfranchising women. “Our decision . . . allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” he writes. “Women are not without electoral or political power.” True, women are no longer without electoral power. But they were without it for almost the entirety of the history on which Alito grounds his analysis of the Constitution and its provisions. You don’t need a leaked document to learn that.