Reviews | Women are invisible in Justice Alito’s abortion opinion

Yes, the leaked draft notice that would overturn Roe v. Wade was a shock. And it was shocking to read Justice Samuel Alito’s offhand dismissal of a decision that the Supreme Court has repeatedly reaffirmed over the past 49 years as “demonstrably wrong from the start.” It was on page 6 of the draft opinion that Politico published last Monday, and Judge Alito spent the next 61 pages explaining why, in his opinion and perhaps ultimately in the opinion of four other judges, the court must now strike down Roe.

But the real shock to me wasn’t what those 67 pages contain — mostly rehashed archival phrases from the anti-abortion playbook that read like a cleric’s cut-and-paste job — but rather who’s missing. : the women.

Women were also largely absent from Roe v. Wade. While Roe exists in the culture as a kind of feminist abortion rights screed, it was anything but. If people put aside preconceptions and actually read Judge Harry Blackmun’s opinion, they would see that Roe was really a ruling on the right of doctors to exercise judgment on a patient’s best interests without risking prosecution and jail. How else to interpret this summary sentence near the end of the opinion? “The decision upholds the physician’s right to administer medical treatment according to his professional judgment up to the points where substantial state interests provide compelling justifications for intervention.”

Women had a leading role at best in Roe v. Wade, but at least Judge Blackmun and the other six members of his majority had an excuse. When it came to women’s rights, judges had very little to rely on. The court had not yet built a jurisprudence of gender equality; which came later, in the series of cases that young Ruth Bader Ginsburg would litigate for the rest of the 1970s.

At the time Roe went to trial, first in late 1971 and again the following year, the court had only just begun, very tentatively, to recognize that the 14th Amendment’s equal protection guarantee might have something to say about women. True, feminist lawyers filed amicus curiae briefs in Roe, arguing that the right to terminate a pregnancy was essential to women’s equality, but these were neither voices nor arguments that the nine Male judges were ready to hear, and they went unnoticed.

That was then. Forty-nine years later, we live in a different constitutional universe – or did we think. Mississippi, arguing for a ban on virtually all abortions after 15 weeks of pregnancy that is downright unconstitutional under current Supreme Court precedents, is asking the court to overturn those precedents. Certainly young Samuel Alito, as a recent graduate of Princeton, joined an organization of conservatives who sought to limit the inclusion of women in his alma mater. Granted, he’s made his desire to overthrow Roe clear since even before his days on the pitch. It is still amazing that in 2022 he used his power to erase the right to abortion without meaningfully acknowledging its impact both on women and on the constitutional understanding of gender equality as has evolved over the last half century.

His draft opinion targets not only Roe but also Planned Parenthood v. Casey, the 1992 decision that reaffirmed the right to abortion and notably added equality as one of the foundations of this right. Three Republican-appointed justices, Anthony Kennedy, Sandra Day O’Connor and David Souter, wrote in Casey’s unusual joint opinion that women’s ability to “participate equally in the economic and social life of the nation” depended on “their ability to control their reproductive life”. lives.”

Not acknowledging that idea, Alito’s draft instead attacks Casey as “unenforceable,” as seen in “a long list of circuit disputes” between federal appeals courts that disagree on how to apply the test. of “excessive burden” established by the decision. The Casey Excessive Demand Test invalidates a rule that places a ‘substantial obstacle’ in the way of a woman seeking to terminate her pregnancy before fetal viability. One of the main reasons for judicial disagreements over how to apply this standard is not its unenforceability but the reluctance of some Republican-appointed judges to accept the fact that there still exists a constitutional right to abortion; for these judges, no burden is ever heavy enough to be “undue”. As President Donald Trump-appointed judges have populated the lower courts (he has appointed more than 200), ideologically-driven judicial resistance has intensified.

Alito’s project whitewashes decades of progress on women’s rights. It fails, for example, to even cite the landmark majority opinion of Justice Ginsburg in 1996 in United States v. Virginia who rejected the exclusion of women from the state-supported Virginia Military Institute.

Virginia had defended the male-only admissions policy on the grounds that women were not suited to the college’s physically and emotionally demanding culture. Justice Ginsburg’s response was that physical gender differences cannot be used to justify gender-based stereotypes or to impose “artificial constraints on an individual’s opportunities.” Her analysis made it clear that laws governing pregnancy also cannot be based on stereotypical assumptions about women’s roles or abilities. Any distinction based on sex had to be supported by an “extremely compelling justification”, the court ruled.

This was a stark distinction from an early Roe-era decision, Geduldig v. Aiello, in which the court held in 1974 that because pregnancy is a condition unique to women, a state could deny equal benefits to pregnant women without violating equal protection. Clause. In other words, pregnancy discrimination was not sex discrimination as a constitutional issue. Although the court never formally overturned Geduldig, it has not cited him to deal with a sex discrimination complaint since the 1970s. A friend of the court brief filed by three constitutional equality scholars, Serena Mayeri, Melissa Murray and Reva Siegel, argues in the case now before the court that the Geduldig decision was effectively superseded by the Virginia decision and other sex discrimination cases and that the right to abortion must be understood as a right to equality.

The argument caught Judge Alito’s attention but not his agreement. “Regulation of a medical procedure that only one sex can undergo does not trigger enhanced constitutional review” unless the regulation is merely a pretext for discrimination, he wrote. For this proposal, breaking with decades of Supreme Court practice, he cited Geduldig.

In the wake of the mortifying breach that the leak represents, much has been said about the “legitimacy” of the Supreme Court. The court has a problem, no doubt, that the non-scalable height barriers around its building will not solve. But if half a century of progress towards a more egalitarian society, painstakingly achieved on many fronts by many actors, can be so easily jettisoned by the wave of a few judicial hands, the problem to worry about is not that of the Court. It is that of democracy. It’s ours.

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