Akhil Amar and the draft of Dobbs

Yale law professor Akhil Amar, in a prominent defense of the Supreme Court’s leaked draft opinion quashing Roe v. Wade, argues in the Wall Street Journal that it contains “nothing radical, illegitimate or improperly political”. Amar supports access to abortion but doubts that it is protected by the Constitution. He points out that Roe was poorly motivated. He thinks the “disastrous assessments” by many authors that Judge Samuel Alito’s draft in Dobbs v. Jackson Women‘s Health endangers same-sex marriage and some forms of birth control “do not stand up to scrutiny.” He even suggests that the new diet might not be very hard on women.

His essay was trumpeted by many in the conservative press as proof that even some liberals admit that canceling Roe wouldn’t matter. But the play is full of unwarranted optimism and leaps of logic.

It is true that Roe’s reasoning was not convincing. But courts sometimes get the right results for the wrong reasons. In Brown v. Board of Education, Chief Justice Earl Warren’s opinion relied on shaky social science to declare segregated schools unconstitutional. Warren did it because he wanted a unanimous court, and a condemnation of all the vicious racism of the Jim Crow regime would have lost the vote of Stanley Reed, a Kentucky judge. Brown was soon shown to be unassailable, but not for the reasons in the court’s opinion. (Amar knows all of this. He’s quoting the “best argument” for Brown, not what Warren wrote.) Should Brown’s decision be overturned because the court used the wrong argument? How is Roe different?

Amar writes that “Roe said nothing, surprisingly, about the relationship between abortion rights and women’s equality”. Alito’s draft has the same flaw: it “says little – too little – about sex and gender equality“, and Amar thinks the court “will probably have to take equality issues more seriously”. That’s like saying a boat is seaworthy except for the big hole in the hull.

Alito disposes of the sex discrimination argument in a short paragraph, relying on a 1974 ruling (which Amar elsewhere calls “ridiculous”) that pregnancy discrimination has nothing to do with sexual discrimination – as if the subordination of women was not always to deprive them of control over their reproductive powers. Amar does not tell us how he thinks Alito could defend his position while recognizing the equal protection clause which, unfortunately, is in the Constitution.

Amar makes a brief foray into originality: “When Americans passed the 14th Amendment in the 1860s, hardly anyone thought it outlawed abortion laws.” Yes, and hardly anyone thought it prohibited racial segregation. The same Congress that passed the amendment also separated the schools in Washington, D.C. Sophisticated originalists such as the late Justice Antonin Scalia realized long ago that one cannot simply try to channel the subjective expectations of drafters when interpreting a text. Amar, like Alito, does not even mention the 13th Amendment argument, even though forced pregnancy and childbearing were an integral part of the slavery the amendment abolishes.

As for the implications for other rights, we must begin by noting that we are already at the bottom of the slippery slope: it will be a disaster for women even if the court does not go any further. (Amar blithely states that “most women” who live far from the nearest state where abortion is legal “should be able to travel to get the treatment they want.”) But the news is not good for contraception and gay marriage.

In his Constitution of Amarica podcast, Amar said there was no movement to overturn the right to birth control: “Lib law professors, you’re just trying to scare people with boogeymen or something. like that.” Some in the conservative press agree.

But what is contraception? Many rights to life claim that its most reliable forms, such as the birth control pill and the IUD, are abortifacient. Judge Alito himself warned against “morning after pills, which destroy an embryo after fertilization”. This is not how plan B normally works, and it is not certain that it will ever harm a fertilized egg. But legislation to ban it is already under consideration.

Republican legislatures are already abdicating control over who will be punished for what. The court declined to ban a Texas law that allowed anyone to sue anyone “aiding or abetting” an abortion – a scheme that could penalize any constitutional right a legislature doesn’t like. Four other states now have similar laws, and more are likely to follow. Some IUDs specifically exempt; some don’t. Laws criminalizing abortion at any time after fertilization could empower prosecutors to prosecute doctors who prescribe these contraceptives.

The court probably doesn’t want to revisit the same-sex marriage issue, even though the reasoning for Alito’s opinion on abortion is essentially copied from his dissent in the marriage case. He may not have a choice. Texas Attorney General Ken Paxton has denounced the court’s decision to protect same-sex marriages and has repeatedly encouraged state officials and citizens to challenge it.

Suppose he takes the opportunity to create a test case, stating that such marriages are no longer available or recognized in Texas? One could easily imagine the hardline Fifth Circuit Court of Appeals upholding that ruling, forcing the question about the role of the Supreme Court. Amar points out that this is gender discrimination – “Patrick was allowed to marry Mary, but Patricia was not” – but the court ignored this in its same-sex marriage ruling, as did he did in Roe. How can he be sure he won’t avoid her again, like Alito did in his Dobbs project?

Disclosure: Amar is my friend, he was my constitutional law professor, his course changed my life and he helped me craft the arguments, discussed above, that the 13th Amendment protects abortion and that discrimination antigay is sex discrimination. In his podcast, he calls out by name his friends and former students who he says misinterpreted Dobbs’ likely results. Here as elsewhere, I am his admirable example. He is terribly wrong. Even great constitutional scholars have bad days, and this is one of them.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning down the house: how libertarian philosophy was corrupted by delusion and greed (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.

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