In early May, Politico published a leaked draft of Samuel Alito’s forthcoming opinion in Dobbs v. Jackson Women’s Health Organization, which affirms Mississippi’s law prohibiting abortion after fifteen weeks except in cases of rape or when the mother’s life is endangered. If it stands, this opinion will effectively end Roe v. Wade, the landmark 1973 opinion that guaranteed the right to abortion in the United States.
Alito points out that Roe depends upon the Fourteenth Amendment’s due process clause, which has been interpreted in such a way so as to protect rights not explicitly found in the U.S. Constitution, such as the right to privacy. More precisely, it does two things: it incorporates the rights enumerated in the first eight amendments to the Constitution and it guarantees fundamental rights, such as the right to privacy, not explicitly found in the Constitution. It is this right to privacy that justifies the fundamental right to an abortion in Roe.
Alito claims that the standard applicable to fundamental rights not explicitly found in the Constitution and Bill of Rights is whether the right is part of the fabric of “history and traditions” of the United States. Despite conservatives’ assertions to the contrary, this argument that the right to privacy is not part of this basic fabric of history has far-reaching implications for civil rights that The Atlantic’s Adam Serwer has pointed out. Others, among them Saturday Night Live, have criticized the specific common law precedents that Alito cites, including thirteenth century English law and the seventeenth century jurist Sir Matthew Hale. Here I want to pose a slightly different question: what is the conception of history found in Alito’s draft opinion? If it does not include a right to privacy, then what fundamental rights are recognized by Alito’s version of American “history and tradition”?
Some commentators see the dystopian future imagined by Margaret Atwood in The Handmaid’s Tale as a template, and Atwood herself has endorsed this connection. Historian Jill Lepore points out that Alito is apparently surprised that there is no mention of abortion in a document “crafted by fifty-five men in 1787.” The Constitution is a document that grounds political agency in white masculinity, so we really shouldn’t be all that surprised that there’s no mention of abortion or a whole host of matters that need not have concerned white male property owners in the early Republic. Indeed, many conservatives share Alito’s apparent fondness for this conception of political and legal agency.
In the draft opinion, Alito acknowledges the notorious ambiguity of the term “liberty,” and states that “historical inquiries […] are essential whenever we are asked to recognize a new component of the ‘liberty’ protected by the Due Process Clause” while sternly admonishing us that we shouldn’t mistake the freedom referenced in the Fourteenth Amendment for what we wish it meant today. Alito first surveys the common law tradition before turning to the legality of abortion pre-Roe in the United States, pointing out that “the overwhelming consensus” of U.S. states and territories prior to Roe was the criminalization of abortion at all stages. Hence, Alito concludes, it is impossible to say that abortion is a right deeply rooted in the “history and traditions” of this country.
If freedom is said in many ways and we must understand freedom through its history, then it follows that there are various histories of freedom. Alito focuses on a legal history of freedom, though even here his history of freedom is quite selective. Legal scholar Daniel Medwed points out that first trimester abortions were legal in most states prior to the 1850s, when the American Medical Association and then the Catholic Church sought to outlaw abortion. Additionally, the Comstock Act prohibited the sale of contraceptives across state lines in 1873. So, the history of abortion rights in this country is far messier than Alito allows.
Although Alito would like to neatly distinguish legal from medical histories—and part of his critique of Roe is due to its excessive reliance on medical authorities—these histories cannot be so neatly distinguished when dealing with bodily rights. Michel Foucault realized that the control of individual bodies and populations in the modern period entails various conspiracies of legal, political, and medical histories. Indeed, returning to the nineteenth century we can see that legislative bans on abortion were driven by the American Medical Association’s efforts. By 1973, The Supreme Court deferred to medical authority in its Roe opinion, though by then the medical establishment favored abortion rights.
By overturning Roe, Alito appeals to popular sovereignty rather than medical authorities when he claims that it will be up to voters in individual states to decide whether abortion will be legal in these jurisdictions. Here he confirms the suspicion of expertise present mainly among conservatives today. But in these states where abortion is outlawed, regimes of surveillance will need to be developed to determine when women have had an abortion or perhaps even when women have miscarried. In October of 2021, for example, Britney Poolaw was convicted of manslaughter after suffering a miscarriage. Her use of methamphetamine was found to be a contributing factor, and she was sentenced to four years in prison.
The worry is that such cases will become more prevalent with the passage of so-called “personhood” bills, which conceive of the fetus as a legal person, and “fetal heartbeat” bills, which make it illegal to obtain an abortion until after women often realize that they are pregnant. As mentioned, surveillance measures will be needed to monitor pregnant women, but at this point, it is not clear what form this scrutiny will take. It may, as with Texas’ recent law, deputize citizens to report suspected abortion providers. Proponents of the bill are careful to point out that the bill criminalizes those who provide abortions, not women who obtain them, but the intended effect will be the same.
When it comes to histories of freedom, it is important to ask who is rendered more free and who is rendered less free or even unfree in these histories. In the case of the leaked opinion, it is already clear that the intention of Alito’s history of freedom is to render women in the United States less free.
Post-Roe Postscript (7/7/22): I first drafted this post a couple of months ago, shortly after Alito’s opinion in Dobbs was initially leaked. On June 24, The Supreme Court handed down its decision effectively ending Roe and it now appears that abortion will become outlawed in approximately half of the states. States will enact or revive various laws to curtail the legality of abortion. An awful possibility has become reality, and women in the United States are now less free than they were before June 24th. But this is not simply about the loss of a right to bodily autonomy, and this ruling does not simply mean the return to a pre-Roe world. As many have already pointed out, surveillance technologies have improved in the fifty years since Roe, and the states that outlaw abortion will likely use these technologies to control women in ways that were not possible then. Every indication is that the powers of the state will be deployed in the name of “life” in ways that render all of us less free.
Corey McCall
Corey McCall teaches philosophy for the Cornell Prison Education Program and serves as a staff paralegal for Legal Assistance of Western New York. He was a professor of philosophy at Elmira College from 2006–2021. His research focuses on various ethical, political, and aesthetic conjunctions and disjunctions of Caribbean, African American, American, and European traditions of thought. Most recently he co-edited Decolonizing American Philosophy (SUNY, 2021).
