After surveying abortion rights at the time the 14th Amendment was enacted, Justice Alito's draft opinion, which masquerades as the result of originalism, asserts: “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
It turns out he’s flat out wrong. Professor Aaron Tang points out (in the Los Angeles Times) "the glaring historical mistakes that pervade its supposedly originalist analysis." The Alito draft acknowledges that at the time of the nation's founding abortions were permitted before quickening (first notable fetal movement, which occurs at roughly 15-16 weeks of pregnancy), but rejects this as "of little importance" by the time the 14th Amendment was ratified. Alito writes, "By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening."
To the contrary, replies Tang:
The best evidence is that only 16 of 37 states banned pre-quickening abortions when the 14th Amendment was ratified. In the other 21 states, abortion remained perfectly lawful through roughly 16 weeks of pregnancy. As one pastor explained in response to a married woman who consulted him about a pre-quickening abortion, such an act was “no crime, because the child was not alive.”
As I have noted repeatedly in this blog, fidelity to the agenda of the Republican Party far better explains the rulings of the Republican majority on the Supreme Court than any appeal to originalism, textualism, or strict constructionism. The Republican justices ignore such principles whenever need be to reach a conclusion that they wish to reach. When they do appeal to originalism, their interpretations are often contentious and unconvincing. (Regarding the First Amendment, for instance , their campaign finance rulings interpret speech in a way that would have baffled the founders, while their recent religious liberty rulings are hardly compatible with a strict or historical reading of the establishment and free exercise clauses.) So Alito’s mistake or misrepresentation in this instance is hardly surprising.
The draft opinion (with virtually all 5-4 and 6-3 SCOTUS opinions with only Republicans comprising the majority) is a results-oriented ruling. Beginning with Richard Nixon, Republican presidents have aimed to remake the federal bench. The catchphrase then was "strict constructionism" (the originalism of the day; in any case, that's ancient history now with this relentlessly activist court). Republican Presidents Nixon, Ford, Reagan, and the first Bush all nominated at least one authentic, well-qualified conservative jurist whose rulings at some point displeased the right wing of the Republican Party. (Adherence to, or straying from, the Constitution had nothing to do with the displeasure. They strayed from Republican talking points.)
Enter the Federalist Society, which has focused on guaranteeing no surprising rulings that contradict the major tenets of the Republican Party agenda -- especially on abortion. Donald Trump promised to outsource the vetting of Supreme Court nominees to the Federalist Society, which, in turn, chose nominees who would stick to the party line come hell or highwater.
By 2017, when Trump entered office, the Federalist Society had a robust list of names and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were each regarded, with good reason, as sure things on a cluster of issues important to the party. (Never mind the consternation expressed by Senators Susan Collins and Lisa Murkowski.) All three Trump appointees, with Clarence Thomas, Samuel Alito -- and, yes, even John Roberts, who prefers to overturn major precedents in three steps rather than one -- are members of the Federalist Society.
Powerful Christian Right faction of the GOP
This ruling (when it comes down) will match the agenda (and decades of campaign promises) of the Republican Party and the wishes of a powerful faction of the party's base voters. After the leak of the Alito draft, North Country Public Radio interviewed voters about an anticipated ban on abortion. An advocate for banning abortion, Richard Harris, voiced views consistent with the GOP agenda (as quoted by reporter Emily Russell):
This is a religious view. (One view, hardly a consensus, among many.) I’ll note that if there are any references to abortion in the Bible, they have not come to my attention. Harris appeals to biblical passages that reference blood. I don’t know how he came to believe what he professes to believe, but he speaks with absolute certainty.
Regardless of his politics, his views (as reported) are a perfect match for the Republican party line: state sanctioned enforcement of this religious view must prevail. There is no thought – from a party that makes a fetish of invocations of liberty and touts family values – to preserving a woman's liberty in this matter or offering empathy for struggling families. Not at all. If a woman becomes pregnant, she must be forced to carry the pregnancy to term. Never mind how burdensome, or even, as recent laws require, risky continuing the pregnancy is.
Poverty and severe medical risk
Let’s acknowledge first that most abortions are sought by women who live in poverty and often lack access to adequate medical care. The red states that have refused to expand coverage under ACA are among the hot spots ready to outlaw abortion. Not only does this rob women of agency, in many instances, it poses risks for both the woman and the fetus, and eventually (if all goes well) the mother and her young child. Will Republican governors and legislators act to help these women?
Back at the cafe, Mr. Harris has faith that someone (somewhere, somehow) will step up to help: “I think there are resources and there are people who have been touched by God to love who will care for these children if there’s not a father around to really man up for it."
Again, this is consistent with the GOP agenda: no government handouts for poor women; no state coddling of children, infants or the unborn. And just for spite (as noted above): no Obamacare. The Republican Party line: the state is justified in forcing pregnant women to carry pregnancies for nine months and to give birth, but is committed to refuse assistance for families in need.
Let’s be clear what this means in practice. In the Up First podcast, NPR’s Rachel Martin reports on a Texas woman, Ana (and Scott her fiancé, now husband), who had decided, after an unexpected pregnancy, to have a child. Then, at 19 weeks, her water broke – too soon for the baby to survive. The couple spent the night in the ER agonizing over the heartbreaking news.
Ana’s doctors told her that even with excellent NICCU care, the fetus would not survive, while Ana was at great risk of experiencing septic shock or dying from loss of blood. Furthermore, the complications that Ana risked would have diminished her chances of having a healthy baby in the future.
Standard of care in the United States would offer the option of terminating the pregnancy at this stage, but Texas law prohibited this – unless Ana’s condition worsened so that she was in imminent danger of death. The couple, which could afford a flight out of state at considerable risk to Ana, fled to get an abortion.
The Texas law (which provides no exceptions for rape or incest) and the draconian laws in other red states that will soon be in place, reflect the religious views of Catholic and evangelical voters who comprise a powerful faction of the Republican base. Meanwhile, Republicans have begun discussing a nationwide ban on abortion and even bans on birth control.
The strong arm of the law
An intolerant religious minority is bent on returning to an era when women were subjugated to men. This minority believes that women need to be put back in their places in a traditional gender hierarchy. It is not for women and families to make medical decisions; it is for the state to impose its judgment. This view abets even abortion bans that threaten the welfare of women and children, that harm the future prospects of women and families, and that put women's lives at risk.
This minority is a critical faction of the voting base of the contemporary Republican Party. Simply put, Republicans can't win elections without this faction turning out in force. Focused on gaining and retaining political control, the party is champing at the bit to use the coercive power of the state to enforce bans on abortion.
Don’t count on the Republican majority on the Supreme Court to protect Americans from such assaults by government on our freedom. And don’t think for a moment that this activist court is driven by a faithful reading of the Constitution of the United States.