Samuel Alito’s draft of an opinion overturning Roe v Wade is a candidate for history’s best-known first draft. What I want to draft here is an outline of a maximalist defense of the right to an abortion that provides an aggressive alternative justification to the one codified in Roe v. Wade.
I. A Crime Against Human Rights. In overturning Roe v Wade, the Supreme Court will take away the rights of more than 150 million women in the United States and subject them to bans on abortion procedures that include elective procedures, procedures to save the life of the mother, and procedures to end pregnancies caused by rape and incest. Following on the publication of Alito’s draft, conservatives have been quick to propose bans on abortion pills, contraception, laws that criminalize travel to pro-women states for abortions, and other things. In effect, the Court’s decision to overturn Roe v Wade will authorize the creation of totalitarian systems for nullifying the human rights of women in the United States.
2. The Governing Standard. The governing standard for Constitutional evaluation of laws about abortion of other matters primarily affecting women (job and salary discrimination, etc.) should be the full citizenship of women that is recognized by the 19th Amendment, the Civil Rights Act of 1964, Title IX, and other laws. Likewise, the primarily references for understanding what is meant by full citizenship for women should be the feminist tradition that reaches back to Mary Wollstonecraft in England and includes American figures from Maria Stewart, Elizabeth Cady Stanton, Sojourner Truth, and others extending through the several waves of feminist thought since 1963. Given that English authorities on the common law did not recognize full citizenship for women, Samuel Alito’s reliance on those authorities was wrong-headed in a fundamental way.
3. The Weightlessness of “Potential Life.” According to Alito, “Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Given that women are full human beings and citizens of the United States, the rights and interests of women are paramount in the situation while the “interest in potential life” is miniscule if it should be considered at all. Of the rights of speech, press, religion, and assembly, a fetus knows nothing just as it knows nothing of its interests. The rights and interests of women are a fundamental element for any understanding of the Constitution while any talk of the rights and interests of a fetus is patent nonsense.
4. Heightened Scrutiny. Alito ridicules the idea of the “heightened scrutiny” that Roe originally demanded in relation to laws concerning abortion. However, Roe actually did not go far enough in that regard. Given the fundamental character of the full humanity of women, all the laws, regulations, and practices of government that concern women should be subject to strict scrutiny for both recognizing and promoting the full humanity of women. The scrutiny should be especially strict in terms of forbidding the reintroduction of any practice originating from the period in which women were not assumed to be fully equal. Much of the reason for overturning abortion restrictions is that they originate from traditions in which women are not treated equally.
5. No Good Faith in Abortion Opponents. Alito argues that “even Roe and Casey did not question the good faith of abortion opponents.” Given the violence of abortion opponents and their facetious arguments for parental notice, waiting periods, informed consent, and clinic qualifications, it’s become increasingly difficult to fully portray the extent of the bad faith of abortion opponents. More importantly, abortion opponents can not have “good faith” in relation to the reproduction decisions of women because they do not accept women as fully human beings who have a right to direct their own sexual and reproductive lives. It’s especially the case on the religious right that anti-abortion activists believe that women are “the weaker sex” and should live in subordination to men and under the protection of men. As long as abortion opponents reject the views on female equality in American society, they can not be considered as acting in “good faith” for legal purposes.
To briefly summarize, opponents of abortion should have no standing to legislate in opposition to the rights of women, including the right to terminate a pregnancy at will.
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