Alito’s opinion completely elides the significance of the 14th Amendment, which was explicitly designed to address the particular horrors of slavery, including the right of individuals to determine whether, with whom, and when to form a family.
Demonstrators rally in front of the Supreme Court the day after justices overturned Roe v. Wade. Yasin Ozturk/Anadolu Agency via Getty Images
In Overturning Roe, Radical Supreme Court Declares War on the 14th Amendment
LESS THAN AN hour after the U.S. Supreme Court ruled that the Constitution no longer recognizes the right to abortion, and that the decision about whether individuals enjoy reproductive freedom should be decided by individual states, Missouri Attorney General Eric Schmitt was ready.
In a four-page letter sent to the state’s Revisor of Statutes, Schmitt wrote that he was pulling the trigger on the state’s blanket ban on abortion — a law that had been sitting dormant, waiting for Roe v. Wade to fall. “With this attorney general opinion, my Office has effectively ended abortion in Missouri, becoming the first state in the country to do so following the Court’s ruling,” he said in a press release.
During a subsequent press call, Yamelsie Rodríguez, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, said that the state’s sole remaining abortion clinic had gone dark. “Shortly after the decision came down, we notified the Missouri Department of Health and Senior Services that we are ceasing abortion services in the state of Missouri. We have reached the end of the line for abortion care,” she said. “Today is the worst-case scenario for the 1.3 million people of reproductive age who live in the state of Missouri, where abortion is now banned.”
Indeed, with the fall of Roe, 22 states are poised to ban abortion almost immediately; four other states are expected to follow suit. Thirteen of those states have sleeper, so-called trigger bans on the books, like Missouri, that will now rapidly take effect across a large swath of the country. In all, tens of millions of people of reproductive age will be left without access to abortion.
The court’s consequential ruling in Dobbs v. Jackson Women’s Health Organization represents the culmination of decades of conservative ideological assault on reproductive freedom. And it opens a door for the court’s 6-3 supermajority to strike down a host of other protections grounded in the Constitution’s promise of individual liberty that the court declares in Dobbs are not actually rooted in “history and tradition” — including the right to use contraception, the right to consensual sexual relations, and the right to same-sex marriage.
Still, the text of the majority ruling, authored by Justice Samuel Alito, is not entirely new: The substance of the ruling has not changed since a leaked draft of the opinion was published by Politico in May. As he did in the leaked opinion, Alito goes on at length about how history doesn’t include a right to abortion (notably citing the “great” Sir Matthew Hale, a 17th century judge who sentenced two “witches” to death and advocated for a husband’s right to rape his wife); gives a nod to the ahistorical idea that abortion is akin to eugenics; and seems perplexed by the idea that any reliance interests may have developed around the 50-year-old abortion precedent — in other words, he can’t see how generations of people may have internalized the guarantee that they have the right to plan and control their reproductive lives.
Most consequentially, perhaps, is the majority’s cramped and somewhat confusing view of the individual liberty rights guaranteed by the 14th Amendment. According to the Alito majority, there are two limited categories of rights protected by it: Those specifically mentioned in the first eight amendments — like the (apparently absolute) right to bear arms — and those that comprise “a select list of fundamental rights that are not mentioned anywhere in the Constitution.” And where that select list is concerned, Alito writes that the court must basically determine whether a right was considered as such in 1868, when the 14th Amendment was ratified. He concludes that abortion wasn’t firmly accepted then and so cannot be considered so now.
In fact, Alito’s opinion scoffs at the idea that individual liberty would include a person’s ability to make autonomous intimate personal choices. “While individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts,” he wrote. “These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.” That criteria, “at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like,” he wrote.