Alito's rationale endangers any ruling

by Tom Maertens

Tom Maertens worked in the state department for presidents Bill Clinton and George W. Bush.

To the surprise of virtually nobody, Justice Samuel Alito’s draft decision in the case of Dobbs v. Jackson would strike down Roe v. Wade and Casey v. Planned Parenthood, eliminating the constitutional right to an abortion.

Chief Justice John Roberts confirmed the authenticity of the leaked draft but made clear that it was not final.

Five conservative justices — Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — support overturning the half-century-old precedent.

Three of those justices were confirmed under Donald Trump, who promised to appoint anti-abortion justices to the Court.

The Spectator, a conservative British publication, pointed out Trump’s hypocrisy: he reportedly paid for as many as eight abortions. When asked about it directly by a reporter, Trump gave a non-answer: “Such an interesting question.”

The three Trump justices all blew smoke during their confirmation hearings, giving reassuring statements such as Kavanaugh’s: “It’s settled as a precedent of the Supreme Court… One of the important things to keep in mind about Roe v. Wade is that it has been affirmed many times.” Gorsuch called it the law of the land and said he accepted it.

That was all kabuki for the cameras. The new majority will apparently use whatever double-talk and casuistry they need to in order to overturn Roe and Casey.

The right wing has already rolled back voting rights and civil rights and weakened Miranda rights.

As Maureen Dowd wrote for The New York Times, “They are strict constructionists all right, strictly interested in constructing a society that comports with their rigid, religiously driven worldview. It is outrageous that five unelected, unaccountable and relatively unknown political operatives masquerading as impartial jurists can so profoundly alter our lives.”

Astonishingly, Alito’s draft repeatedly cited Matthew Hale, a 17th Century jurist who sentenced “witches” to burn, and wrote a defense of marital rape.

All five justices are Roman Catholic and their views apparently conform to The Ethical and Religious Directives for Catholic Health Care Services, Sixth Edition, which sound like something from the medieval era:

“In case of extrauterine pregnancy, no intervention is morally licit which constitutes a direct abortion.” (Ectopic pregnancies kill both mother and fetus.)

“Catholic health institutions may not promote or condone contraceptive practices … except natural family planning.”

In contrast, a Gallup poll in 2019 found that 92% of Americans believed using birth control to be “morally acceptable.”

And what about Jews and Muslims?

The Orthodox Union of Judaism put out a statement expressing concern that such a decision could allow restrictive laws that are in conflict with Judaism’s insistence on the protection of the mother’s life.

Different schools of Muslim law have different views, and the Quran does not explicitly refer to abortion. Most American Muslim advocates argue against the abortion ban in the United States.

Alito’s opinion argues that the due process clause of the Fourteenth Amendment, on which Roe is based, has been held to guarantee some rights that are not mentioned in the Constitution, provided that such rights are “deeply rooted in this Nation’s history and tradition”

What is deeply rooted are the rights of white supremacists and straight Christian men.

As Politico put it, “To read (Alito’s) opinions is to inhabit a world in which it is white Christian men who are the principal targets of invidious discrimination…”

When the Constitution was written, slavery was legal and women could not vote (until 1919). Ten of the first twelve American presidents were slaveholders; the Constitution counted slaves as three-fifths of a person, and contained a provision (Art. 4, Sec. 2) requiring the return of fugitive slaves.

Alito argues that the word abortion is not in the Constitution, but neither is the word marriage. He claims to support “stare decisis” (respect for precedent) but then declares that “it does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start.”

Using that rationale, any ruling can be overturned, including Griswold (the right to contraception), Obergefell (same-sex marriage), Loving (interracial marriage) and Lawrence (consensual sex acts).

John Balmer, religious professor at Dartmouth, contends in Politico that Roe was an afterthought for the evangelicals; the real issue was protecting whites-only “segregation academies” in the south, such as Bob Jones University, which were threatened with integration.

He points out that delegates to the Southern Baptist Convention voted in ’71, ’74, and again in ’76 in favor of abortion. It was the IRS threat to revoke the tax exempt status of whites-only institutions, not abortion, that activated the Christian right.