Image description: Protesters outside the Supreme Court defending the right to abortion following the leak of a draft Supreme Court opinion that would overturn Roe v. Wade.
(A longer version of this piece has been published in the Washington Post (25 June, 2022)).
In reversing women’s right to abortion in Dobbs v Jackson Women’s Health Organization, the US Supreme Court claims that its dramatic limitation of women’s constitutional liberties restores the neutrality of constitutional law and cleanses it of politics. But the decision is “plainly a political project” under the cover of highly selective historical claims. Justice Samuel A. Alito’s majority opinion follows a kind of originalism that purports to interpret the Fourteenth Amendment’s guarantee of liberty in light of the nation’s ‘history and traditions’. According to this interpretation “only rights deeply embedded in that history are protected — and the right to an abortion is not”.
Justice Alito claims that ‘we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy’. Here he follows the late Justice Antonin Scalia, who wrote that looking to history ‘establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself’.
But Dobbs demonstrates how wrong these claims are. A judge’s turn to ‘history and traditions’ can “just as easily disguise judicial discretion as constrain it”.
In Dobbs, the majority court conveniently defines the Constitution’s protections for liberty with reference to laws enacted in mid-19th-century America, a period where there was a campaign to ban abortion across the nation. In the process, it justifies overturning a half century of law protecting abortion rights by tying the Constitution’s protections for liberty to laws enacted in the mid-nineteenth century, a time when U.S. law did not protect a wife’s right to control property, earnings, or sex in marriage, and denied women the right to practice law and the right to vote.
This is an unprecedented approach to interpreting the Constitution’s liberty guarantee. To date, the Supreme Court has read the meaning of Constitution’s great commitment to liberty as evolving, and not in this time-bound way. Though the majority suggests that rights to contraception, interracial marriage, and same-sex marriage are not threatened by Dobbs’ logic, “it adopts a method of interpreting liberty that discredits them”.
The Supreme Court Donald Trump shaped is now employing the language of ‘history and traditions’ to demolish decades of settled law. The majority invented its history and traditions standard with language from the Glucksberg case (invoked by the dissenters in the same-sex marriage case); yet Glucksberg itself recognised the right to abortion as a protected liberty.
Alito’s account of the nation’s history and traditions is also selective, designed to justify his desired results. He downplays the history of the early republic when the common law criminalised abortion, not at conception but at quickening. And he provides an utterly incomplete account of the mid-nineteenth-century campaign to ban abortion. Alito insists that the opposition to abortion reflected in those laws was “sincere” and refuses to consider whether politicians’ views of gender roles, in a period when women were disenfranchised, shaped the campaign to ban abortion, which of course they did. Documents from the period make clear that in the 19th-century campaign against abortion, concern about protecting the unborn was entangled with constitutionally suspect aims; opponents of abortion argued that restricting abortion was necessary to enforce women’s maternal and marital duties and to protect the ethno-religious character of the nation.
Here we face the fundamental question about the majority’s decision to introduce the tradition and history standard: “Why should 19th-century antiabortion laws limit the ways we understand the Constitution’s liberty guarantee any more than the history and traditions of segregation limit the way we understand the Constitution’s equality guarantee?” There is no good reason.
The Dobbs majority allows states to strip women of half a century of constitutional rights by relying on laws enacted during a period when women were wholly disfranchised, laws written by White men without the participation of a single woman.
If we looked outside statute books we would find many American women in the abolitionist and woman’s suffrage movements who demanded autonomy in decisions about parenthood and emphasised the importance of voluntary motherhood. If the Supreme Court wants to tie the meaning of liberty to the nation’s ‘history and traditions’, it needs to include the voices of the disfranchised in such an account, unless it means to perpetuate their disempowerment as part of our present Constitution.
The account of history and traditions in Dobbs is not “conceptually quite separate from the preferences of the judge himself”. Rather, it is a history that presents judicial preferences as the nation’s traditions. “The justices’ efforts to hide their views about abortion in a story about the Constitution’s history and traditions instead reveals to us their view of women.”