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Alito Ignores Abortion Backlash and Rebuffs Justices’ Critiques

June 24, 2022, 5:59 PM

Justice Samuel Alito’s abortion ruling overturning Roe v. Wade remained largely unchanged from the version leaked to the public in May—but in responding to the dissent and concurring opinion by Chief Justice John Roberts, Alito did add some important new elements to the decision.

Among the most notable is a bolstering of “fetal personhood rights,” which give fetuses the same rights as a person, and could be used to strike down state laws allowing abortion.

“According to the dissent, the Constitution requires the states to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed,” Alito wrote. “Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that ‘theory of life.’”

The added language suggests that if a state—or even the federal government—passes a law saying life begins at conception, they’re going to uphold that law, said Laura Portuondo, a reproductive rights and justice fellow at Yale Law School.

“This gives great support certainly for legislatures across the county and even the federal government to try to limit abortion as much as possible in this name of protecting fetal rights,” Portuondo said.

But aside from directly responding to the other justices’ opinions, legal scholars say it was striking to see how much of the draft remained unchanged, especially since the draft was dated Feb. 10.

“It was surprising because the draft was criticized not only for its results, but for its reasoning and also for a number of errors in its treatment, in particular, of the historical sources that Justice Alito looks to,” said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law.

John Bursch of the conservative Alliance Defending Freedom said it’s significant that so little changed given the political and societal pressure that followed the leaked draft opinion published by Politico in May. The historic breach set off a wave of protests, including at the justices’ home, and an arrest for attempted murder of Justice Brett Kavanaugh.

Fetal Rights

At least six states have introduced legislation to ban abortion by establishing fetal personhood rights, according to the Guttmacher Institute, a research group that supports abortion rights. Opponents have warned these laws could criminalize abortion and also some common practices involved in fertility treatments.

In the draft decision, Alito said the court’s decision is “not based on any view about when a state should regard prenatal life as having rights or legally cognizable interests,” but suggested later that the court may agree viability isn’t it.

In the final decision, Alito added new language explaining why abortion is different from other rights the dissent argues could be at risk as a result of this ruling

He took a swipe at the dissent for not considering the state’s legitimate interest in protecting fetal life, calling the absence of any serious discussion in the dissent’s opinion its “most striking feature.” And though he reiterated that the court’s ruling “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,” he appeared to leave the door open to future arguments on when those rights begin.

Roberts’ Concurrence

One question that remained following the leaked opinion was where Roberts stood.

In a solo concurrence, Roberts said the better course was for the court to uphold the Mississippi abortion law at issue in the case, but not explicitly overrule Roe.

Alito adamantly rejected the approach saying it had “serious problems.”

“While the concurrence is moved by a desire for judicial minimalism, we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right,” Alito said, citing the chief justice’s own words in the court’s 2010 Citizens United campaign finance decision.

“For the reasons that we have explained, the concurrence’s approach is not,” Alito said.

Other Rights

The draft opinion raised fears among progressives that abortion was just the beginning, and that the new 6-3 conservative-majority court would go after other rights not specifically spelled out in the Constitution next. This includes rights protected by the broad idea of “due process”—things like the right to interracial marriage, the right to use contraception, and many rights the court has secured for the LGBT community.

In his draft opinion, Alito tried to head off those concerns, saying that abortion “is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”

“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Those passages remained in the final ruling, and Alito’s analysis of the court’s ruling on other rights was largely unchanged. That was one area, Sepper expected to see more analysis.

“There was a lot of consternation over the ways in which the analysis could equally extend to contraception or sexual intimacy, or same-sex marriage,” she said.

Instead of doing more work to differentiate the abortion right, Alito “just says a bunch of times this is fundamentally different, abortion in inherently different,” Sepper said.

Stare Decisis

Roe v. Wade has been law for nearly 50 years. And while Alito nodded to the need for stare decisis–the legal principle that justices should generally adhere to previous rulings–he made his case in the draft opinion on why Roe needed to go, saying it was “not built to last.”

That, too, remained largely unchanged in the final ruling.

In particular, Alito assailed the reasoning in Roe, saying it was “far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed,” and that the ruling “stood on exceptionally weak grounds.”

Equal Protection

In his draft opinion, Alito briefly dismissed an alternative argument for upholding the right to an abortion based on the equal protection clause.

The theory is that abortion laws are subject to greater scrutiny because they discriminate on the basis of sex.

Alito didn’t bolster his equal protection analysis in the final draft, saying only that neither “Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which established that a States regulation of abortion is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.”

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com