Alito’s ‘Dobbs’ Opinion Overturning ‘Roe’ Is Judicial Activism at Its Most Self-Deceptive

  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.
·8 min read
In this article:
  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.
Photo Illustration by Elizabeth Brockway/The Daily Beast/Getty
Photo Illustration by Elizabeth Brockway/The Daily Beast/Getty

It’s happened: Roe v. Wade is overturned. Abortion will soon be illegal in two dozen states. In this country, according to the Supreme Court, women have no constitutional right to control their own bodies.

But what really happened?

According to the Court’s conservative majority, the Supreme Court is properly exercising its role to interpret the Constitution. As Justice Brett Kavanaugh put it in his concurrence to Dobbs v. Jackson Women’s Health Organization, “the issue before this Court…is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion.”

And so Justice Samuel Alito’s 79-page opinion carefully and meticulously dissects Roe and explains why there is no “right to abortion” in the Constitution’s explicit language or our “nation’s history and traditions.”

It’s Official: The Supreme Court Has Overturned Roe v. Wade

But that’s not really what happened, right? We all know, or should know, that Justices Alito, Barrett, Kavanaugh, and Gorsuch were all put on the Court for specific political reasons: chiefly, to overturn Roe v. Wade. That is what Presidents Bush (43) and Trump explicitly campaigned on, and although it took a while, now they have delivered.

So is that what really happened? Not entirely.

Because it wasn’t simple politics that put these justices on the bench under extremely bizarre circumstances, including an Obama appointee denied a hearing because an election was ten months away, and a Trump justice confirmed after a presidential election had already begun. It was religious politics. Banning abortion has been the #1 item on the Christian Right’s agenda for over forty years. And conservative Catholics and Evangelicals voted for anyone—even a potty-mouthed, serial-adulterer, racist-ranting Biblical ignoramus—to achieve it.

Which makes sense, really. Imagine if you really believed that a fetus was a human life, and that 600,000 of them were being murdered every year. You’d probably become a “one issue voter” too. If only progressives were equally focused, Hillary Clinton would’ve appointed three justices to the Court. Just imagine what today could have been like.

All of these threads are present in Justice Alito’s opinion, which is at once articulate and self-deceptive.

On the constitutional level, Alito’s points are quite cogent. The Constitution does not mention the term “abortion.” The reliance on various other explicit provisions by Roe and subsequent cases is spotty: sometimes it’s substantive due process, sometimes equal protection, sometimes other things.

Personally, as a feminist and a liberal, I believe that women are people and have the right to control their own bodies. I also believe that basic human right is within the overall values of the Constitution, which speaks in general, rather than specific, terms. But Alito is right, I can’t point to a specific phrase that says it.

Then again, Justice Alito acts as though his preferred philosophy of constitutional interpretation—that something must be either explicitly mentioned or “deeply rooted in our Nation’s history and tradition”—is gospel, which it is not. Perhaps the role of the Supreme Court is to determine what rights are an “essential component of ordered liberty,” which may indeed evolve over time to encompass new rights—including contraception, mixed-race marriage, same-sex marriage, and reproductive healthcare—that the Founders may not have imagined, or even supported.

But this philosophical debate is a bit beside the point.

As the dissent jointly authored by the three liberal justices emphasized, it seems to miss the lived experiences of millions of women and the real-world consequences of this decision on actual, living people, not just fetuses. (Even Justice Kavanaugh’s more moderate concurrence weirdly emphasizes the professional consequences women face when they get pregnant, rather than the affront on their dignity as human beings that this decision represents.)

Most importantly, Justice Alito returns, again and again, to the question of the “potential life” that is destroyed when an abortion takes place. For example, he writes, “what sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”

Justice Alito repeats this point when he stresses that—contrary to what a lot of pundits are saying today—this case does not spell the end for other rights like those to contraception or same-sex marriage. “The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a ‘potential life,’ but an abortion has that effect.”

But why is that at all relevant?

The Constitution never mentions “potential life,” let alone “unborn human being.” That’s not a constitutional doctrine, nor is it a reason to treat some civil rights as more equal than others. It’s only relevant because—taking off the masks here—Justice Alito, like Justices Barrett and Gorsuch, is a conservative Christian whose doctrinal view is that life begins at conception. So to him, the rights of Roe are different from those in other cases. Because, underneath all the careful historical and theoretical analysis, Justice Alito is also voting his conscience.

On the surface, Justice Alito is careful to make this distinction. “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,” he insists. And in the conclusion to his opinion, he writes, “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” Pure constitutionalism.

But again and again, there are the “tells” that show even he doesn’t buy this sleight-of-hand.

In addition to his invention of “potential life” as a legally relevant category, Alito a dozen times uses the term “unborn,” which is a neologism of the Christian Right. (Not only is it not in the Constitution—it’s not in the Bible.) And he devotes an entire section of his opinion (Section II.D.3) to castigating the dissent for “the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.” But it is not that absence that is striking; it is the conclusion in Justice Alito’s opinion that the fetus is a “potential life” that merits protection.

I’m an Abortion Provider in Missouri. Here’s How Life Will Change After Roe.

In fact, part of the point of pro-choice legal theory is that people disagree about that question. Whether an embryo, blastocyst, or pre-viability fetus is a “potential life” is a question for a woman to decide—but Justice Alito already decides it, because he already knows that it is, so much so that he doesn’t even know where he knows it from.

How could it be otherwise? Are we really supposed to believe that it’s just a coincidence that a court loaded with religious conservatives has just obtained the most sought-after goal of religious conservatives? That it’s mere happenstance that they themselves are members of religious organizations and denominations focused on traditional values regarding sex, God, and women’s bodies? It just so happens?

(Incidentally, since the charge of anti-Catholic bigotry gets lobbed at anyone who notes any of this, let it not be forgotten that Justice Sonia Sotomayor is also Catholic. This is not about Catholicism; it’s about religious extremism.)

The increasing preposterousness of this view—that the Supreme Court is somehow above religion and politics—is why so many Americans have lost their faith in the Court as an institution. It’s just lunacy to believe that women’s rights get eviscerated while gun rights get expanded is just some apolitical feature of judges deciding cases. Come on. Guns and abortion drive voters to the polls, just like conservatives’ rubber-stamping of Republican voter suppression drives them away. More than just the polls: the church pews too.

As millions of women are saying right now, today’s decision is a historic, tragic, demeaning, and demoralizing moment. That’s not because Dobbs deployed originalist jurisprudence to overrule a precedent. It’s because Dobbs is really about whether women are equal to men, with the power to control their own bodies and the moral agency to determine whether a “potential life” is really a human life or not. It’s about whether some people’s religious views can take precedence over women’s autonomy. And it’s about whether there are limits to the power of church and state to control women’s bodies.

Anyone who has followed the last few decades in Supreme Court politics, Christian Nationalism, or American religious fundamentalism, knows that. And when he tips his hand a little too far, it’s clear that Justice Alito knows it too.

Read more at The Daily Beast.

Get the Daily Beast's biggest scoops and scandals delivered right to your inbox. Sign up now.

Stay informed and gain unlimited access to the Daily Beast's unmatched reporting. Subscribe now.