Alito’s Draft Opinion That Would Overturn Roe Is a Disaster of Legal Reasoning

The leaked draft of a Supreme Court opinion overturning Roe v. Wade Continues to spawn confusion, anger, anxiety, and ample predictions. Today I’m going to honey in on some of these reactions to the draft opinion, starting with people questioning some key claims within it.

The February draft—published Monday by Politico and verified as authentic by Chief Justice John Roberts—concerns the case of a 15-week abortion ban in Mississippi (Dobbs v. Jackson Women’s Health Organization). It was penned by Justice Samuel Alito and is labeled as the opinion of the Court. In it, Alito writes that the Court must overturn both Roe v. Wade (1973) Planned Parenthood v. Casey (1992), the main legal precedents upon which abortion rights in America are based.

Alito’s logic in the draft opinion is raising many an eyebrow. Among his reasons for rejecting Roe and Casey, Alito notes that “the Constitution makes no reference to abortion.” And while the 14th Amendment’s Due Process Clause has been held to enshrine rights not explicitly mentioned in the Constitution, such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” writes Alito, adding that “the right to an abortion does not fall within this category.”

“But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category,” writes Reason‘s Damon Root:

Namely, the right to terminate a pregnancy may be justly seen as a subset of the right to bodily integrity. And the right of bodily integrity has a very impressive historical pedigree indeed. In fact, as the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to body integrity may be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported from English law into the Constitution.

The constitutional right at issue in Dobbs only fails the “deeply rooted” in history and tradition test (a test wholly invented by the Supreme Court, by the way) when the court defines the right narrowly. But when the right is defined broadly— defined as a subset of the venerable and longstanding right of bodily integrity, in other words—then the right passes the test.

University of Maryland history professor Holly Brewer points out that Alito derives support for his arguments from 17th century British common law, which sometimes made abortion a crime if it took place after the “quickening.” But the quickening refers to the point in a pregnancy at which a mother can feel a fetus moving inside her—something that doesn’t usually happen until around 16 weeks pregnancy at the earliest.

This 17th-18th century understanding would mean upholding Roe, and disallowing Dobbs,” notes Brewer. “So Alito then says the common law somehow must have made illegal abortion before quickening — without a shred of evidence.”

Jason Kuznicki, editor in chief of the think tank TechFreedom, takes issue with the idea that rights must be “deeply rooted in history” in order to be valid. This concept “implies that the rights of some people will always be less important than the rights of others. It also raises the question: How far back do the roots of our rights really go?” Kuznicki tweetednoting that some currently recognized rights—including the right to marry people of the same sex—are not deeply rooted.

“The more we privilege deep roots in history, the more weight we have to give to some terribly illiberal ideas,” added Kuznicki. “Rights for white people have deeper roots than rights for black people, and no amount of time can change that.”

Democratic politicians are angry, obviously. For instance: “I am angry. Angry and upset and determined,” Massachusetts Democratic Sen. Elizabeth Warren told reporters (while trampling some plants). “The United States Congress can keep Roe v. Wade the law of the land, they just need to do it.”

They’re vowing to fight back, although what they can realistically do is limited.

Some Republicans are mad, too:

But Collins is in the minority among Republican legislators.

Some people are still lingering on how or why the draft was leaked and what it means. Some—including Senate Minority Leader Mitch McConnell (R–Ky.)—are even calling for the leaker to be criminally prosecuted.

But this obsession with process and punishment over the substance of the opinion is pretty weird. “The Court’s credibility doesn’t depend on ceremonies or secrets or mystique. It depends on it getting the answers right,” notes Timothy Sandefur, an adjunct at Cato and vice president at Goldwater Institute. “If it gets the answers wrong; no amount of officialdom and ritual will save it. If it gets the answers right, none is necessary.”

What happens next? We still don’t know if the court’s final opinion will resemble this leaked draft. But many are making predictions predicated on the idea that it is the final opinion. These predictions include dire scenarios of unsafe illegal abortions and widely disappeared access to abortion.

But Reason‘s Jacob Sullum suggests that the impact will be much more limited than many assume:

Last year, based on a scenario in which 22 states banned abortion, Middlebury College economist Caitlin Knowles Myers projected that the annual number of abortions in the US would fall by about 14 percent. In Texas, which banned the vast majority of abortions last September and avoided early judicial intervention by restricting enforcement to private civil actions, the net impact seems to have been a drop of about 10 percent.

Americans should keep those surprisingly modest estimates in mind as they try to predict what will happen after the Supreme Court overturns Roe v. Wadeas a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization suggests it will soon do. While many states are expected to respond by imposing severe restrictions on abortion, most probably will not. And even in states that ban elective abortions, workarounds will mitigate the impact of those laws.

It’s not just the impact on abortion access that people are worried about, however. Many are concerned about the way the ruling could lead to a rethinking of other Supreme Court precedents.

“As we’ve warned, SCOTUS isn’t just coming for abortion — they’re coming for the right to privacy Roe rests on which includes gay marriage + civil rights,” Rep. Alexandria Ocasio-Cortez (D–NY) tweeted.

Some Republicans “want to take us back to a time before Roe v. Wadeback to a time before Obergevel v. Hodgesback to a time before Griswold v. Connecticut,” suggested Vice President Kamala Harris said in a Tuesday speech.

Whoopi Goldberg suggested on The View that the Supreme Court “will go after gay marriage and maybe Brown v. Board of Educationnext.

Reason‘s Scott Shackford suggests that such fears are largely unfounded.

What it would mean for electoral politics is anyone’s guess. “It’s not clear that it will give the party any significant boost in the upcoming midterm elections,” writes Nicole Narea at Vox. Meanwhile, CNN suggests that “the Supreme Court may have just fundamentally altered the 2022 election.”

Democrats are certainly already campaigning on this issue.

“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” President Joe Biden said in a Tuesday statement. “And it will fall on voters to elect pro-choice officials this November.”

“Women are going to go to vote in numbers we have never seen before,” Sen. Amy Klobuchar (D–Minn.) said on CBS.

They’re also using it to push other reforms, like an end to the filibuster:

In the longer term, some see it invigorating Democratic support and/or intensifying culture wars.

“Americans are almost evenly divided on their personal views of abortion, according to years of Gallup polling, but only 19 percent think abortion should be illegal under all circumstances,” notes Bret Stephens in The New York Times. “It shouldn’t be hard to imagine how Americans will react to the court conspicuously providing aid and comfort to the 19 percent.”


FREE MINDS

A reminder that abortion hasn’t always been as neatly divided between left and right as it is today:

More on the history of the anti-abortion movement here.


FREE MARKETS

Is the nonfungible token (NFT) bubble bursting? Daily average NFT sales are down 92 percent from their September 2021 high, the Wall Street Journal reports:

The number of active wallets in the NFT market fell 88% to about 14,000 last week from a high of 119,000 in November. NFTs are bitcoin-like digital tokens that act like a certificate of ownership that live on a blockchain. …

Many NFT owners are finding their investments are worth significantly less than when they bought them.

An NFT of the first tweet from Twitter Inc. co-founder Jack Dorsey sold in March 2021 for $2.9 million to Sina Estavi, the chief executive of Malaysia-based blockchain company Bridge Oracle.

Earlier this year, Mr. Estavi put the NFT up for auction. He didn’t receive any bids above $14,000, which he didn’t accept.


QUICK HITS

Hillbilly Elegy author and Donald Trump-backed candidate JD Vance has won the Ohio GOP Senate primary.

• “Vance’s victory deals a body blow to a small but noticeable resurgence of anti-Trump—or post-Trump—sentiment in the GOP,” suggest Jonathan Swan and Lachlan Markay at Axios.

• More Trump-backed candidate wins from Tuesday primaries.

• Lab-grown “human milk” may be coming soon.

• The Disinformation Panic: “This ‘unprecedented crisis for democracy’ is neither nor a crisis for democracy,” writes Tiffany Donnelly at Reason.

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