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An America without Roe
With a leaked Supreme Court draft opinion overruling Roe v Wade in hand, what does this say about America, about how we got here, and where we need to go?
Like a lot of people, my day yesterday was consumed trying to understand the meaning and impact of the leaked Supreme Court draft ruling in Dobbs v Jackson Women’s Health. I read the opinion. I tried to listen as broadly as I could to the conversations around me — the rage and pain, the sense of betrayal, the fear and uncertainty. But I’m not a lawyer or a legal scholar. I’m not a medical expert. I’m not a woman. So I want to be careful about what I might could add to what overturning Roe might mean for the kind of country we live in when something like this not only can happen but seems inevitable.
So what’s in the draft?
There are plenty of thoughtful, legal analyses out there worth digging into (including this one from Aaron Blake at the Washington Post). Through all the discussion of the 14th Amendment, the extensive history and exploration of the idea of rights “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” — both long-held and oft-used in rulings from both liberal and conservative judges over the last 50 years — is a thread of moralizing and smug self-righteousness. Beyond the back and forth about Roe as a legal ruling, about the logical flaws, and the vague, shifting standards introduced by Casey, it is this posturing interwoven into the draft ruling that feels profoundly dishonest.
As he draws toward conclusion, Alito offers: “[T]o ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Said another way, this might sound like: “I am going to make a thorough and detailed legal argument about unenumenrated rights broadly that is well-suited to disassembling all of the positive rights articulated and protected over the last fifty years, but that logic only applies to this one issue.”
That feels either deeply disingenuous. The purpose of judicial opinion is to shape decisions that follow. While Alito makes an effort to distinguish the abortion right from other rights protected by the 14th Amendment, the conclusions he draws and demands are so sweeping that I suspect Alito wants this logic to get reused or plans to reuse it himself. Otherwise he has just constructed something that sounds deeply historically justifiable just to strike down a right he finds morally abhorrent — which seems unlikely and underambitious given all of his judicial history.
Secondly, a deeply self-aggrandizing posture emerges in Alito’s discussion of precedent that points to his overall intent and also reveals just how silly Democrats sound feeling “lied to” and “aggrieved” by his (and Gorsuch’s and Kavanaugh’s) confirmation testimony. He seems to see himself as a conservative Earl Warren figure righting an egregious wrong — comparing Roe to Plessy and this Dobbs decision to Brown v Board of Education. What this suggests is that he told the truth in his testimony: he has always held Roe to be a major ruling representing an important and validated precedent. AND he believes he was destined to overrule it. He points to other major overrulings as essential and historical moments: “Without these decisions [the overrulings of previous Constitutional decisions], American constitutional law as we know it would be unrecognizable, and this would be a different country.” Different is the deeply problematic word. We know that version of America — we have been there: most of these decisions are about expanding liberty and sharing power. This Dobbs draft represents the opposite: more power and control for some, less freedom and safety for many.
So where do we go?
I have to keep reminding myself that this is just a draft. We don’t know how the Court will rule, and abortion is still a constitutionally protected legal right in America. And yet, I am angry and frustrated and scared about the direction of the country — and I don’t have a uterus.
For now, what I believe is revealed by this entire situation is that our system of self-government was designed and is predominantly judged by men of privilege. And that privilege inspired our founders who could take their position of safety and power in society for granted to focus on negative rights (protecting citizens from government), and therefore our Constitution and most of our judicial history is rooted in these negative rights. Additionally, the judicial review process is inherently and explicitly backward looking. It is a review, so will almost always tilt toward history, however imperfect and status quo, however unfair. The amendments and subsequent Supreme Court decisions are mostly about defining positive rights (government guaranteeing rights for people). But in a negative-rights framework focused on limiting government intervention, establishing positive rights as society continues to grow and evolve and as citizenship is shared more and more broadly is constitutionally difficult unless we consistently use the legislative and regulatory tools at hand pass new laws and shape new rules. Leadership and legislation can be expansive and future-oriented if we are bold and ambitious about our possibilities — and committed to lead. And that work will always be and has always been separate from the work of the judiciary.
We must examine our history with clear eyes, but we cannot rely on reinterpretation of the past independent from clear articulation of the present and future to ensure our path forward. Relying on the judiciary to carry this responsibility has always been a mistake, and this ruling reflects the inevitable cost of our elected leaders failure to lead. So despite (or with) all the rage and frustration and fear, we have to get to work crafting what we want — and committing to pass laws and building institutions that enshrine that future in our systems rather than hoping a backward-looking institution will uphold our ambitions for us on the foundation of creaking systems built on previous generations’ hopes.