Samuel Alito's leaked anti-abortion decision: Supreme Court doesn't plan to stop at Roe
It's fitting that, if the Supreme Court is going to overturn Roe v. Wade, they'd have the justice with the most incel-esque affect be the one to write the opinion. Samuel Alito has always been the conservative on the court who was least able to conceal the right-wing resentment that fuels him, glowering his way through President Barack Obama's State of the Union addresses and generally being a whiner on the level of Donald Trump. Clarence Thomas might be the most unhinged member of the court, Amy Coney Barret the most uncanny, and Brett Kavanaugh the best at spittle-flecked public meltdowns. But if I had to bet money on who is most likely to spend their nights on sleazy internet forums, whining that feminism has "ruined" women, it would 100% be on the court's creepiest member, Alito.
Late Monday night, Politico leaked a draft of the Supreme Court opinion, written by Alito, that would, without reservation, overturn Roe and allow states to ban abortion outright. (Which they are already doing.) Though heavy with legal-ese, Alito's misogyny shines through like a deplorable beacon. His contempt for the very idea that women are rights-bearing people is not hard to discern, even as he claims to hold no ill will towards them. Sewn throughout this decision is a deep, abiding belief that women simply aren't people in any meaningful sense. Women's lives, ambitions, pain, joys, and autonomy have absolutely no value he can discern. Instead, he treats women as ambulatory uteruses who have no more right to reject a pregnancy than your refrigerator has a right to reject holding your milk and eggs.
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The inability — or unwillingness — to think of women as rights-bearing people kicks in early in this draft decision, when Alito complains that, "far from bringing about a national settlement of the abortion issue," Roe "enflamed debate and deepened division." The unsubtle implication of this is that if anyone doesn't like women having rights, then well, that right just has to go. The language may be fancier than Donald Trump's "grab 'em by the pussy" rant, but the logic is the same. Yeah, it's your body, ladies, but if someone else wants to use it, as Trump memorably said, you have to let them do it.
Samuel Alito has always been the conservative on the court who was least able to conceal the right-wing resentment that fuels him.
Alito's tendency to imagine women as appliances instead of people is inescapable. He blithely dismisses the idea that forced childbirth is a burden on women, claiming medical costs are "covered by insurance or government assistance" and after the baby is born, all a woman must do is "drop off babies anonymously" and should have "little reason to fear that the baby will not find a suitable home."
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Alito doesn't acknowledge that a woman might have objections to being pregnant outside of the financial burden to her family or fears for the baby's future. Being pregnant and giving birth is inherently difficult and time-consuming. Pregnancy affects your relationships with everyone from the person who impregnated you to your family to your friends and work colleagues. Pregnancy is notoriously impossible to conceal from others! But these burdens simply do not rate in Alito's imagination, any more than one would ask if the oven suffers when you turn it on.
And if women don't like it, he sneeringly writes, well, "[w]omen are not without electoral or political power," as they still retain their right to vote. It's an argument in such idiotic bad faith that even Twitter trolls don't dare make it. That some women don't like abortion doesn't mean that all women should be denied the right. But Alito doesn't pause to consider that women are a diverse, complex group of people. Great idea, giving someone with such a mean imagination the right to abolish the human rights of millions.
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Speaking of women's suffrage, it's a good thing it was obtained by constitutional amendment. If it weren't, we can't be sure that Alito wouldn't be taking potshots at that right, as well. Alongside his contempt for women as rights-bearing people, this draft opinion is rife with loathing of any social progress made after the 19th century. Alito repeatedly notes that no right to abortion was legally established before "the latter part of the 20th century," as if the relative newness of the legal right inherently makes it illegitimate.
"Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None," he writes, the whiny tone unmistakable.
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Of course, there are a plethora of rights that were not established until the latter part of the 20th century.
Women did not have the right to use birth control, have their own credit cards or bank accounts, be paid fairly for their work, or decline sex with a husband until the latter part of the 20th century, either. Jim Crow laws and segregated schools were still legal until the latter part of the 20th century. And, crucially, the rights to have sex in the privacy of your own home — even with someone of the same sex — and to have a same-sex marriage were established even later, in the 21st century.
I challenge anyone to read Alito's draft opinion and his repeated, scornful invocation of "the latter part of the 20th century," as if everything that progressed during that time is a stain on our nation.
Alito is aware of all this, and indeed, cites many of the cases that established these rights in his decision. He glibly dismisses the possibility that overturning Roe will lead to the overturn of the right to birth control or any LGBTQ rights, however, claiming that those are different because none involve "potential life." But just as he claims that there should be no legal distinction between pre- and post-viability abortions, it's easy to see how one could argue that contraception and homosexuality threaten "potential life" by redirecting sexual energies away from conception. This isn't outlandish speculation, it is already the argument that the anti-choice movement makes against both legal contraception and legal homosexuality.
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Alito tries to cover his rear by writing, "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." But Bush v. Gore has similar language in it, and that hasn't prevented it from being used as precedent in literally hundreds of cases. More importantly, the whole of the decision suggests Alito doesn't believe his own claims that other human rights aren't in danger. As Slate's legal expert Mark Joseph Stern noted on Twitter, Alito's one sentence is contradicted by paragraphs of contemptuous language about the illegitimacy of all those decisions from "the latter part of the 20th century" and equally lengthy diatribes about how the court's duty to respect precedent is overrated.
Second, the meat of Alito's opinion is a lengthly repudiation of "unenumerated rights" that are not laid out in the Constitution. The Supreme Court may only protect these rights, Alito says, if they are "deeply rooted" in history. Abortion is not. Neither is same-sex marriage.
— Mark Joseph Stern (@mjs_DC) May 3, 2022
As Stern notes, Alito "makes it extremely clear that he is *not* including" decisions that legalized same-sex sexual relations or marriage." Republicans have elsewhere indicated that, however. After they end Roe, they're coming for Obergefell v. Hodges, the decision that legalized same-sex marriage. After all, the conservatives on the court — including Alito — voted against Obergefell the first time. Now they have another crack at it, with a majority that opposes the right. Anyone would be a fool to think they aren't eager to take it. And frankly, if privacy rights are delegitimized by the court, Griswold v. Connecticut, which legalized contraception, is on the chopping block. It is, after all, the first case that established the privacy rights all these other cases are built on.
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In a recent column at the Washington Post, Paul Waldman argued that the Republican agenda is "a return to the 1950s, a dramatic rollback of social progress." He notes this is no exaggeration, citing multiple Republican politicians who have admitted that they want to overturn Griswold v. Connecticut, allowing birth control to be banned again. But of course, when progressives argue that Republicans want to undo the past 70 years of progress, they get accused of hyperbole, on the specious grounds that the same people who voted for Donald Trump couldn't be that bad.
Well, I challenge anyone to read Alito's draft opinion and his repeated, scornful invocation of "the latter part of the 20th century," as if everything that progressed during that time is a stain on our nation. Republicans are willing, indeed eager, to force childbirth on people as a punishment for sex. In itself, that is an argument against the idea that Republicans are constrained by morality, decency, or empathy. Republicans are coming for the whole panoply of women's rights, LGBTQ rights, and racial equality. They don't even bother to hide it. It's just a matter of the public believing Republicans when they show us who they are.
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