Opinion: Alito errs repeatedly about Roe v. Wade history in his draft abortion opinion

U.S. Supreme Court Justice Samuel Alito’s draft opinion for overturning Roe v. Wade and Planned Parenthood v. Casey turns on two pivotal points. First, he informs us that Roe was wrongly decided because there is no support for abortion as a fundamental right within the text of the Constitution, our history, or legal precedent. Second, he concludes that adherence to precedent is not appropriate because Roe’s analysis was egregiously wrong.

Justice demands equal protection for individuals' personal interests in private matters

Alito begins his reasoning by noting that, heretofore, the Supreme Court has adopted a notion of substantive due process by which certain liberties are constitutionally protected because they are deemed central components of our nation’s notions of ordered liberty. He recites the court’s oft-stated guidance that these notions are to be found in the text of the Constitution, history, and legal precedent. He goes on to find that abortion rights are not within the text of the Constitution; that abortion rights were not historically accepted; and that abortion rights were wholly absent from legal precedent prior to Roe. To this he adds the observation that feticide was criminalized at common law and through state legislation during the 19th century. He concludes that a purported right to abortion that cannot be found in constitutional text, history or precedent cannot be deemed a fundamental liberty interest.

In this respect, Alito’s reasoning constitutes an astoundingly brazen recital of obtuse and thoroughly discreditable political rhetoric. It is of no legal import that the term abortion does not appear in the text of the Constitution. The legal maxim originating with the ancient Greeks that has been the polestar of Anglo-American jurisprudence for nearly 900 years is that justice consists of treating equals equally, and unequals unequally but in proportion to their relevant differences. This maxim affords legitimacy to extrapolation of general rules of law from a recognition of the existence of a compilation of similar circumstances in which each receives similar treatment upon application of settled laws.

The demand of proportional justice requiring similarity rather than sameness renders inapplicable the logical failure attendant to generalization. Thus, while the term cellphone does not appear in the Constitution, a challenge to Fourth Amendment protection of such recorded information is not seriously entertained by the courts on that account. Similar treatment of similar circumstances is the essence of stare decisis. Charges of legislating from the bench and judicial fiat generally amount to no more than political defamation of extrapolation through sound judicial reasoning.

In this way, Roe recognized that there existed an overwhelming number of incidences in which the law protects intensely personal interests as private matters insulated from public scrutiny. Many of these matters involved consideration of a person’s interest in management of their own body. Roe recognized that a decision about terminating a pregnancy involved similar considerations about a woman’s body, and therefore involved a legitimate liberty interest. This determination did not end the inquiry, however. The court went on to consider the state’s assertion that, apart from the expectant woman, another person’s life was at stake.

The state's supposed interest in protecting a fetus relies wholly on religious teachings

The decision in Roe turned on the analysis of the state interest, not the individual interest. As pointed out in Casey, "even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman’s liberty."

When evaluating the individual’s claim that because her body was under her control so too was the choice over abortion, the conservative majority on the Roe court found themselves confronted with the fact that a 2,500-year history of law within Western civilization revealed no instance in which the fetus had been regarded as a human being or person. The state’s claim was unsupported by precedent.

Further, while abortion had been outlawed at common law and by 19th-century legislation, the justification for criminalizing abortion was wholly based upon religious teachings of ensoulment of the fetus. Since the Fourth Amendment prohibits criminalization of conduct on the basis of religious doctrine, the Roe court invented the seemingly secular interest of potential life to serve as the public interest at stake.

However, Roe’s concept of potential life as a governmental interest arose by judicial sleight of hand, through an equivocation. The Roe court equated the very different concepts of ensoulment and fetal viability through the unitary phrase "potential life."

Alito erroneously asserts that the Roe court inserted an abortion right as a premise into law where it never existed Actually, Roe inserted a public interest into law where it never existed.

The Roe court reached a reasoned conclusion, which Alito wrongly labels an assumed premise

In line with political rhetoric, Alito treats the right of abortion as Roe’s premise rather than its conclusion, and he follows obtuse reasoning attendant to the novelty of the purported right with a demonstration of the many faults in Roe’s trimester analysis. He reasons that these faults undermine any constraint upon state legislation restricting abortion, and that a record bare of any basis to restrict state authority requires the court defer to state regulation.

Alito’s recital turns Roe on its head. He bares the record of an individual liberty interest by conflating Roe’s conclusion with its premise. He erroneously treats the right to abortion as Roe’s premise, which he essentially criticizes as conjured from nothing. In fact, the initial premise of Roe is that American law repeatedly relegates management of one’s body to the realm of personal privacy. Nothing Alito writes undermines this observation, nor the conclusion that abortion also concerns management of a person’s body.

Alito’s primary criticism of the idea of constraining abortion or abortion regulation on the basis of fetal viability is that it constitutes an arbitrary and variable point of gestation at which Roe and Casey recognized the state interest. Indeed, it is arbitrary.

However, Alito’s conclusion that constraint upon state legislation is therefore arbitrarily imposed by the judiciary does not follow. Rather, if fetal viability constitutes an arbitrary demarcation and ensoulment is infirmed by the Fourth Amendment, then the state has no legitimate interest. Alito conveniently ignores the problematic religious component of the state interest in potential life in order for a governmental interest to survive. The crux of Casey’s reasoning was to rehabilitate Roe by ruling that only fetal viability justified state intervention. Without this rule, the only surviving interest is the individual right to control management of her body.

Alito's draft does a disservice to equal and rational justice

Alito expends considerable print to the propriety of overruling precedents of Roe and Casey. Suffice it to say that the law concerning adherence to precedent has equal authority supporting arguments for and against overturning prior cases. Points of law that favor one or the other seem to be cited based on whether the court is disposed to affirm or overturn. Alito rests his decision to overturn Roe and Casey primarily on his reasoning that they were "egregiously" wrongly decided.

However, he fails to demonstrate any flaw in Roe’s initial recognition of right of control over one’s body. He obfuscates that obvious and just determination by inaccurately reciting the analyses of Roe and Casey. The opinion is nothing more than an exercise in political rhetoric. It would have been one thing had Alito earnestly declared the majority could not countenance the killing of another human being. But his opinion misstates the work of serious jurists, and it is an embarrassment to all those within the judiciary and legal profession who are dedicated to equal and rational justice.

Bruce Lundy Butler is retired after practicing law for 32 years in Des Moines. Email: LLB63Bruce@gmail.com.

This article originally appeared on Des Moines Register: Opinion: Alito errs repeatedly in draft abortion opinion