Why Alito can’t find women in the Constitution
Opinion by Susan Matthews
As abortion rights advocates and anti-abortion protesters demonstrate in front of the
U.S. Supreme Court, Wednesday in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy,
well before viability.
In Samuel Alito’s draft of the opinion that is likely to overturn Roe v. Wade, the conservative justice, makes a familiar argument about the ruling that he seeks to overturn: that Roe was a poorly reasoned decision that isn’t based on anything in the U.S. Constitution.
Here is Alito’s version of that argument, which comes in the second paragraph of the
98-page draft (the first paragraph acknowledges Americans’ divergent views on abortion itself): For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. …
After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by the legislature. This reasoning sounds logical enough.
The Supreme Court is not meant to legislate. It is tasked with parsing and interpreting
the Constitution—to understand it so it can enforce it. But there’s a major problem with the argument that Alito makes here, and those others have made before him: It ignores
the context in which the Constitution was written, and who it was written by and for.
The right to abortion is not explicitly enumerated in the Constitution because the Constitution does not concern itself with the rights of women. As originally written, the Constitution did not even guarantee women the right to vote—it endowed no one with that right aside from propertied white men. The omission of abortion, then, says less about the issue itself than about who the Founding Fathers considered people.
Nearly 200 years after the Constitution was drafted, in the late 1960s and early 1970s, women across America pushed to liberalize restrictive abortion laws.
These advocates were coming into their own as professionals, and they realized that reproductive autonomy was essential for them to live full lives. I interviewed one of those women recently. Ann Hill started law school at Yale in 1968, getting admitted only because so many men were fighting in Vietnam. In her first few weeks of school, she realized she was pregnant, and chose to get an illegal abortion. In the aftermath of that procedure, thinking about how she’d been forced to risk her life to control her reproduction, she got angry. “I was furious that … a whole state, a whole country would place women in jeopardy,” she told me.
“I was bound and determined to change it.
So, nobody else, no other woman would have to go through the danger and the fear and the anger that I went through when I realized that I was a second-class citizen.” Her usage of second-class is intentional; it’s an apt description of how the Constitution and those who interpreted it regarded women in 1968. Hill would spend her three years in law school honing an argument that a woman’s right to abortion can be found in the Constitution—that, among other places, it’s covered by the 14th Amendment, which guarantees all people equal protection under the law, and that pregnancy and childbirth can constitute cruel and unusual punishment under the Eighth Amendment.
Those claims formed the basis of a case Hill brought with other lawyers against the state of Connecticut—a case she won. The argument that won the day in Roe—what became the basis for women’s right to abortion nationwide—was based on the right to privacy, another point that Hill and her fellow lawyers seized on in their case. The Supreme Court ruled that such a right could be found in the 14th Amendment’s Due Process Clause, which forbids deprivation of “life, liberty, or property, without due process of law.” This has historically been viewed as a weak justification, even by liberals, a fact that Alito pointed out in his draft opinion.
But it’s worth remembering that the 14th Amendment was one of a suite of amendments that was enacted after the Civil War to correct the wrongs of slavery, and to address the fundamental failings of the Constitution itself. This is what Samuel Alito leaves out when he says “the Constitution makes no mention of abortion.” With regards to abortion, the most notable thing that’s missing from the Constitution is the perspective of anyone who might get one. When the right to an abortion was enshrined in America, it was in large part because of women like Ann Hill, who dared to imagine that the Constitution’s sweeping language about equality could apply to them too.
This article originally appeared on Palm Beach Post:
Why Alito can’t find women in the Constitution
Constance Shehan
Constance Shehan is professor of sociology and women’s studies, University of Florida.
She first published this piece in July 2018. It was distributed by The Conversation.
How Roe changed American women’s lives
If the Roe v. Wade decision were overturned – reducing or completely eradicating women’s control over their reproductive lives – would the average age at marriage, the educational attainment level and the labor force participation of women decrease again?
These questions are also difficult to answer. But we can see the effect that teen pregnancy, for example, has on a woman’s education. Thirty percent of all teenage girls who drop out of school cite pregnancy and parenthood as key reasons. Only 40 percent of teen mothers finish high school. Fewer than 2 percent finish college by age 30.
Educational achievement, in turn, affects the lifetime income of teen mothers.
Two-thirds of families started by teens are poor, and nearly 1 in 4 will depend on welfare within three years of a child’s birth. Many children will not escape this cycle of poverty. Only about two-thirds of children born to teen mothers earn a high school diploma, compared to 81 percent of their peers with older parents.
The future depends in large part on efforts at the state and federal level to protect or restrict access to contraception and abortion. Ongoing opposition to the legalization of abortion has succeeded in incrementally restricting women’s access to it. According to the Guttmacher Institute, a research group that studies reproductive policies, between 2011 and mid-2016, state legislatures enacted 334 restrictions on abortion rights, roughly 30 percent of all abortion restrictions enacted since Roe v. Wade.
In 2017, Kentucky enacted a new law banning abortion at or after 20 weeks post-fertilization. Arkansas banned the use of a safe method of abortion, referred to as
dilation and evacuation, which is often used in second-trimester procedures.
Of course, medical abortion isn’t the only way in which women can exert control over reproduction.
Even before 1973, American women had access to a wide range of contraceptives, including the birth control pill, which came on the market in 1960. Five years later, in Griswold v. Connecticut, the Supreme Court ruled that married couples could not be denied access to contraceptives. In 1972, in Eisenstadt v. Baird, the court extended this right to unmarried persons.
In 2017, a record number of states acted to advance reproductive health rights in response to actions by the federal government.
In 2017, 645 proactive bills were introduced in 49 states and the District of Columbia. Eighty-six of those were enacted and an additional 121 passed at least one committee
in a state legislature.
How would the lives of American women in the last decades of the 20th century and early 21st century have unfolded if the court had made a different decision in Roe v. Wade? Would women be forced into compulsory pregnancies and denied the opportunity to make life plans that prioritized educational and employment pursuits? Would motherhood and marriage be the primary or exclusive roles of women in typical childbearing ages?
With the availability of a greater range of contraception and abortion drugs other than medical procedures available today, along with a strong demand for women’s labor in the U.S. economy, it seems unlikely that women’s status will ever go back to where it was before 1973. But Americans shouldn’t forget the role that Roe v. Wade played in advancing the lives of women.
Perhaps the only person who triggers progressives as much as Elon Musk these days is Ron DeSantis. Every week, it seems, Florida’s Republican governor takes some new action that enrages the left and delights the right. His poll numbers are rising, which is bad news for Democrats — because DeSantis is showing the way forward for Trumpism without Donald Trump.
Like Trump, DeSantis is a counter puncher — minus the political baggage. He punched back against the left-wing education establishment, signing a law banning critical race theory in schools. He punched back against Disney, moving to take away its special tax status after the Burbank, Calif.-based company demagogue his bill to protect the parental rights of Floridians. He punched back against Big Tech, signing a law that prohibits social media companies from censoring or de-platforming political candidates. He punched back against race-baiting Democrats who slandered GOP election integrity laws as “Jim Crow 2.0,” signing a sweeping voting overhaul bill that strengthens voter identification requirements, prohibits the mass mailing of ballots and bans ballot harvesting.
FILE — Florida has become an unlikely laboratory for right-wing policy,
pushed by Ron DeSantis, a governor with presidential ambitions.
(Doug Mills/he New York Times (nytimes.com)
Most important, DeSantis punched back against the perpetual lockdown establishment and turned Florida into a bastion of freedom during the pandemic. He put seniors at the front of the line for vaccines, banned vaccine passports, restricted vaccine and mask mandates, suspended local emergency orders, and granted full pardons for all nonviolent offenses and remitted all fines related to COVID restrictions by local governments. And in July 2020, his state education department ordered Florida schools to reopen in the fall for full-time in-person learning — limiting the catastrophic learning losses that have plagued children in other parts of the country.
His strategy is working.
Americans have been voting for DeSantis with their feet, fleeing high-tax,
COVID-restrictive blue states and flocking to freedom in Florida. After languishing in the mid-40s last year, DeSantis’s approval rating in the state has risen to 59% in a new Saint Leo University poll, with just 37% disapproving — almost President Joe Biden’s approval rating turned upside down. DeSantis is on track to win reelection this fall by a wider margin than the 3.4 points Trump won two years ago. DeSantis leads his most likely opponent, congressman and former governor Charlie Crist, by almost nine points in the RealClearPolitics polling average.
He’s ahead of his next-most-likely opponent, Agriculture Commissioner Nikki Fried, by 13 points. If DeSantis secures a decisive victory in November, he could prove a formidable challenger to Biden and an attractive alternative to Trump. While Biden continues to reach new lows in approval, polls also show most Americans still don’t wish Trump were back in the Oval Office. A Harvard CAPS-Harris Poll survey finds that majorities do not want either Trump (55%) or Biden (63%) to run in 2024, with almost 6 in 10 saying they would be open to supporting a third-party candidate if faced with a rematch between the two. If they do both run again, Trump holds a mere two-point edge over Biden — a statistical tie.
The fact that Trump is deadlocked with Biden — whose approval has plummeted further and faster than any modern president — should be a red flag for Republicans. Right now, 69% of Republicans say they want Trump to run again, according to a CBS News-YouGov poll. But after seeing the disastrous policies Biden has implemented — the worst inflation in 40 years, the worst crime wave since the 1990s, the worst border crisis in American history — they also know that the 2024 election is one Republicans absolutely have to win. If Republican primary voters are convinced that Trump cannot prevail, they might back someone else.
DeSantis is putting himself in a strong position to be that someone else. He understands that Republicans don’t want a nominee like Mitt Romney, who let Democrats walk all over him without fighting back. They want a counter puncher. DeSantis is building a record in office that will send a powerful message to Republican primary voters: I’ll give you everything you liked about Trump — except I will win.
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