“What is so shocking, inhuman, and irrational about this draft opinion is that the Court is basing its decision on an 18th century document ignorant of 21st century realities for women.”


It will not make any difference, because the people who have made the decision do not respect scientific or medical evidence, but the cover of The Lancet is about the Alito decision, with a strongly worded opinion inside.

“Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” So begins a draft opinion by Associate Justice Samuel Alito, leaked from the US Supreme Court on May 2, 2022. If confirmed, this judgement would overrule the Court’s past decisions to establish the right to access abortion. In Alito’s words, “the authority to regulate abortion must be returned to the people and their elected representatives”. The Court’s opinion rests on a strictly historical interpretation of the US Constitution: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” His extraordinary text repeatedly equates abortion with murder.
The Due Process clause of the 14th Amendment to the Constitution has been the main foundation underpinning the right of American women to an abortion. That 1868 Amendment was passed during the period of American Reconstruction, when states’ powers were being subjected to certain limitations. The goal of the Amendment was to prevent states from unduly restricting the freedoms of their citizens. That guarantee of personal liberty, so the Supreme Court had previously held, extended to pregnant women, with qualifications, who decided to seek an abortion. Alito rejected that reasoning. He argued that for any right not mentioned in the Constitution to be protected, it must be shown to have had deep roots in the nation’s history and tradition. Abortion does not fulfil that test. Worse, Roe was an exercise in “raw judicial power”, it “short-circuited the democratic process”, and it was “egregiously wrong” from the very beginning. It was now time, according to Alito, “to set the record straight”.
What is so shocking, inhuman, and irrational about this draft opinion is that the Court is basing its decision on an 18th century document ignorant of 21st century realities for women. History and tradition can be respected, but they must only be partial guides. The law should be able to adapt to new and previously unanticipated challenges and predicaments. Although Alito gives an exhaustive legal history of abortion, he utterly fails to consider the health of women today who seek abortion. Unintended pregnancy and abortion are universal phenomena. Worldwide, around 120 million unintended pregnancies occur annually. Of these, three-fifths end in abortion. And of these, some 55% are estimated to be safe—that is, completed using a medically recommended method and performed by a trained provider. This leaves 33 million women undergoing unsafe abortions, their lives put at risk because laws restrict access to safe abortion services.
In the USA, Black women have an unintended pregnancy rate double that of non-Hispanic White women. And the maternal mortality rate for Black women, to which unsafe abortion is an important contributor, is almost three times higher than for white women. These sharp racial and class disparities need urgent solutions, not more legal barriers. The fact is that if the US Supreme Court confirms its draft decision, women will die. The Justices who vote to strike down Roe will not succeed in ending abortion, they will only succeed in ending safe abortion. Alito and his supporters will have women’s blood on their hands.
The 2018 Guttmacher–Lancet Commission on Sexual and Reproductive Health and Rights For All concluded that these rights, which included the right to safe abortion services and the treatment of complications from unsafe abortion, were central to any conception of a woman’s wellbeing and gender equality. The availability of an essential package of sexual and reproductive health interventions should be a fundamental right for all women—including, comprehensive sexuality education; access to modern contraceptives; safe abortion services; prevention and treatment of HIV and other sexually transmissible diseases; prevention and treatment for gender-based violence; counselling for sexual health; and services for infertility. What kind of society has the USA become when a small group of Justices is allowed to harm women, their families, and their communities that they have been appointed to protect?
The route forward is unclear and perilous. This Court’s argument suggests possible future attacks on a raft of other civil rights, from marriage equality to contraception. Despite urgent pleas from some members of Congress, the long-overdue encoding of Roe into law by the Biden administration is highly unlikely. That a Court is about to force through a health policy supported by only 39% of Americans is dysfunctional. Indeed, if the Court denies women the right to safe abortion, it will be a judicial endorsement of state control over women—a breathtaking setback for the health and rights of women, one that will have global reverberations.

Comments

  1. Walter Solomon says

    While everything written here is true, it’s only preaching to the choir. Alito and the other Justices and politicians who agree with him don’t care about women, at all. Neither The Lancet or any other publication will persuade them to give even an iota of a fuck for the well-being of women.

    I was watching Alexandra Pelosi’s Friends of God recently. It was filmed around 2006 and featured the late, awful Jerry Falwell directing his flock to call their senator to nominate Alito. The fact that Falwell endorsed him is enough proof he would be a terrible addition to the Court. Time has removed any doubt.

  2. Akira MacKenzie says

    As far as the Christian Right is concerned, women dying is merely their Gawd’s will and a “true” Christian woman should be happy to die from an entopic pregnancy rather than blacken their souls with an abortion.

  3. PaulBC says

    Wow. Cool to see The Lancet weighing in, though we now live in a post-expertise society in which people who know what they’re talking about don’t hold any particular weight in public discourse.

    Anyway, it’s not just abortion. “Originalism” means basing every decision on an 18th century document written in complete ignorance of reality in the 21st century, both contingent (how people actually live) and intrinsic (science that we understand now but the “founders” did not). Which would be bad enough except if really means picking and choosing which issues are dealt with through “originalism” and which are conveniently ignored. The 2nd amendment says absolutely nothing about the right to own an AR-15 as far as I can tell.

    The actual doctrine is to pack the courts and do what the supporters of the Federalist Society want to do. I have to give them credit for playing a long game. We really fucked this one up by acting like SCOTUS was not political.

  4. raven says

    Alito and the christofascists aren’t even trying to make sense.
    They aren’t even pretending to make sense.

    Becuase…they don’t have to.
    They have the votes and that is all that matters.
    This isn’t about morality, ethics, religion, the law, or justice.

    What is all about is power!!! Pure raw power.
    They have the power to enslave women and force them to give birth whether they like it or not.
    They also have the power to imprison women for life or kill them by legal execution if they don’t follow their orders.

  5. raven says

    Alito’s draft cited Sir Matthew Hale, a 17th century judge.
    Among Hale’s accomplishments was sentencing 3 women to death for witchcraft.
    Alito and his fan club are fine with recreating horrible times and places and they are OK with killing women for trivial and false reasons.
    Human life is cheap and meaningless to the so called pro-lifers.

    https://www.propublica.org/article/abortion-roe-wade-alito-scotus-hale

    Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Ideas on Rape

    Justice Alito’s leaked opinion cites Sir Matthew Hale, a 17th-century jurist who conceived the notion that husbands can’t be prosecuted for raping their wives, who sentenced women to death as “witches,” and whose misogyny stood out even in his time. (edited for length)

    Then there was Hale’s role in what today is synonymous with the perversion of justice: witch trials.

    In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches.

    What’s more, Hale instructed the jurors that witches were real.

    The jury convicted Denny and Cullender, after which Hale sentenced both women to hang.
    (Four years before, Hale had also sentenced to death another woman convicted of being a witch.)

    Hale’s influence, once again, extended beyond the immediate case and his time. Thirty years later, his handling of the trial in Bury St. Edmunds, preserved in written record, served as a model in Salem, Massachusetts, in the infamous witch trials in 1692.

  6. says

    So Alito is basing his bigotry legal reasoning on a jurist from ANOTHER COUNTRY? Wow, why doesn’t he just look for some Russian legal expertise while he’s at it? He could probably find someone more up-to-date there to support his bigotry…

  7. says

    We have achieved “shithole nation” status. Whenever some nationalist tries that “beacon of liberty” crap, I want to mulch them.

  8. microraptor says

    According to the Bible, a baby didn’t even count as properly “alive” until the first month after it was born.

  9. says

    This means less coming from the Lancet than it would have if they didn’t help kickstart the modern antivax movement, regardless of their subsequent retraction of that.

  10. John Morales says

    Way I see it, the Supreme Court sometimes decides what outcome it wants and then comes up with whatever legal justification for its decision. Not always, mind you… that gambit is for special things.

    Which, clearly, is why political parties strive to put their own judges in and stop the other from doing so. And, even by USA standards, it’s way “conservative” right now.

    So it’s not just that it does not respect scientific or medical evidence, it’s also that it applies its jurisprudence other than dispassionately.

    PS https://www.pewresearch.org/fact-tank/2022/02/25/5-facts-about-the-supreme-court/

  11. jrkrideau says

    the Court is basing its decision on an 18th century document ignorant of 21st century realities for women.

    Reminds me of working in Saudi Arabia back in the 1980’s. There was a joke about the pilot of your plane saying ” Ladies and gentlemen w e are leaving Saudi Arabia, please advance your watches 1,000 years”.

    @^ Raging Bee
    So Alito is basing his bigotry legal reasoning on a jurist from ANOTHER COUNTRY?

    Where do you imagine US law comes from? Common law is called “English Common Law” for a reason. The basics of US law, excepting Louisiana which, IIRC, is Napoleonic, comes from England.

    IANAL but I suspect if you do not accept English legal precedent in many legal cases, the US legal system collapses.

  12. J Mahurin says

    What’s even worse than quoting witch hunters in his legal reasoning is that he actually mischaracterized what they really said about abortion to strengthen his shitty argument. Yastreblansky’s blog has some good posts about it.

  13. says

    That a Court is about to force through a health policy supported by only 39% of Americans is dysfunctional.

    The Republican party is on the verge of permanently baking this dysfunction into American government.
    One of the problems at the heart of this is the simple fact that Republicans no longer require a majority of voters nationwide in order to win the presidency and control the US Senate. And when you have those, you can pack the Supreme Court with conservatives, who are appointed for life.
    Because representation in the senate is apportioned not by population but by state, and states vary from roughly 300,000 to almost 40 million in population, a majority in the Senate can be and is elected by a minority of voters. If demographic trends continue, very soon 70% of Americans will live in 15 states. That leaves 70% of the Senate to be elected by 30% of the population. And because the Electoral College gives each state one electoral vote for each representative in the House and Senate, presidential elections are also weighted the same way.
    The least populated states tend to skew older, whiter, less educated, more religious and more conservative. Appeal to a majority of them, and you can control the federal government. It thus requires winning the votes of small minority, as little as, say, 20% of Americans, to take control of the Senate, which of course is responsible for confirming or rejecting appointees to the Court.
    And presidents can be elected despite losing the popular vote nationwide. We’ve gotten here despite the fact that Republican candidates have lost the popular vote in seven of the last eight presidential elections. It’s a weakness built into the system, into the US Constitution, and the Republican party, seeing the demographic writing on the wall, seeing its base shrink, is taking advantage of it. It’s actually kind of brilliant, evil and undemocratic though it may be. It’s allowed this insane coalition of conspiracy nuts, religious fundamentalists, racists, misogynists, and general assholes to dictate to the rest of us. The wealthy and the conservative have used it to gain and retain wealth and power.
    I suppose I’m mostly writing this for the benefit of people outside the United States, those who are wondering what the fuck is wrong with us over here. Really, the majority of us are sane and reasonable. We’re just not in charge anymore.

  14. StevoR says

    @ ^feralboy12 well, it is time – long overdue – that that changed and the sane and reasonable majority took back charge.

    How that’s achieved is going to be the big problem and question and I don’t really know but that really needs doing somehow.

    / Cap’n Obvs.

    So, who is trying to get the sane and reasonable and 21st century living-in people back in charge and how and what can be done to see those people prevail?

    I can suggest a lot of political refoms starting withscrapping the EC, sweeping a broom through SCOTUS or diluting it by expanding it and changing its mechanisms, ending gerrymandering and voter suppression, changing to a preferential voting or run-off election style stystem, et cetera, – but, well, I can’t get them to happen from here the world’s biggest ocean away. (Except from Hawaii, I guess where we’re only half the world’s biggest ocean away approx.)

  15. StevoR says

    Is there really no way to get rid of SCOTUS Justices dubiously and invalidly appointed and, say, charge them with Conspiracy to Pervert the course of Justice or even domestic internal enemy variety treason which is basically what they’ve done? Ditto the Federalist society mob? Can’t the Democraic party at least start seriously talking of impeaching, removing, arresting, ruling invalid the appointments of these people that lied their way into illegitimate power? Isn’t lying to Congress and treating it with contempt and essentially getting jobs by false pretences fraud or criminal or something?

    In what other job would lying to get that job be okay and not punishable by at least dismissal and in some cases (eg medical, legal) criminal charges as Jim Wright of the Stonekettle Station blog has noted on fb.

    If cheating at sports means disqualification and often severe even lifetime bans then why is cheating in politics and law which matters so much more considered shrug-off-able and not also something that results in disqualfification and lifetime or at least serious bans?

    Extreme hardball idea but could Biden give the SCOTUS InJustices involved an ultimatum – resign your illegitimate appointments to SCOTUS immediately or all police and security protection provded by the govt you are destroying and disempowering will be withdrawal immediately? Would that be legal and possible if of course extreme and inflammatory?

    What power does Biden or Congress have to make the Radical Christian Supremacist SCOTUS InJustices resign or their life so impossible they have to do so?

  16. StevoR says

    PS. Precedent for action like the above – what Trump and the Repugs did to the securtity forces of Congress on Jan 6th 2020?

  17. whheydt says

    Re: SteveR @ #16…
    Look back at what feralboy12 said about the composition of the Senate. Then bear in mind that to convict (by the Senate) after an impeachment (by the House) takes a 2/3 majority.

  18. John Morales says

    StevoR:

    Is there really no way to get rid of SCOTUS

    Um: “Established by Article Three of the United States Constitution”.

    Something to do with the principle of Separation of powers, I believe.

    Now… if that mob can’t seem to get rid of an Amendment, they sure ain’t likely to get rid of an article, are they?

    (Gotta be faced: the whole system is sclerotic)

  19. says

    @12: English common law is only in effect here when it’s not explicitly superseded by the US Constitution, as amended, or by US statutory law. And yes, the rights described in our Constitution do indeed explicitly supersede such misogynistic and superstitious rubbish as Hale’s blitherings. Our Constitution, and the legal customs and doctrines based on it, are the foundations of AMERICAN common law.

    Also, the rulings of one witch-trial judge do NOT constitute the whole of English common law.

  20. wzrd1 says

    I suspect feralboy12 doesn’t know why the founders created the Senate. The Senate was created to counterbalance the high population states, giving the largely agrarian low population states equal footing in one house of government. Without that voice, the Constitution would never have been ratified or accepted at all.
    The loss of the Senate would result in an immediate civil war, with most of our nation’s food supply held hostage, as those low population states would see their government wrested from any input from them in favor of New York and California essentially ruling the nation.

    Akira hit the nail on the head by mentioning ectopic pregnancies, as one state will outlaw abortions of ectopic pregnancies, another will require magical reimplantation inside of the uterus, which is far outside of the powers of science, now and forever. When the placenta is detached, the capillaries are torn, fetal circulation essentially ceases due to exsanguination and oxygen starvation.

    I’ll be honest, I never before considered settling a problem with our government via 7.61x51mm “solutions”, but given the impossibility of impeachment, that remains the only option unless one wishes the handmaid’s tale to become very, very real.
    Maybe we can call it the purge.
    Boy, did that generate dyspepsia!

    Oh, about lying to get their jobs, it is a crime and it’s called perjury, which is a felony.. The moment the opinion is released, arrests could lawfully be made for perjury, with the opinion being the primary evidence, along with their testimony that is now proved rife with lies under oath. Impeachment wouldn’t really be needed, as it’s a wee bit difficult to hear a case from inside of a federal prison cell. But, failure to impeach would be viewed politically as pure political suicide after conviction.

    Oh, from an originalist view, the SCOTUS isn’t required by the Constitution to have a budget, building or clerks, only the justices salaries is required. So, budgeting them just for their salaries would be Constitutional, unless they choose to abandon their treasured originalist bullshit. That additional security also isn’t required by the Constitution, so I find it odd that justices that so treasure the originalist view requested such an extravagance.
    For being bright attorneys, they sure make some phenomenally stupid blunders!

  21. says

    Justice Alito’s reliance on opinions from 200 years ago, and earlier, are consistent with his attack on precedent. As I see it, he is not attacking the 14th Amendment, but rather the 9th.

    Rights not mentioned in the Constitution are specifically protected by the Constitution. Judge Alito’s draft will change that. The 9th Amendment will no longer mean what it says.

    Those unenumerated rights will now be restricted to those which are determined to be “deeply rooted in this Nation’s history and tradition”.

    And there goes the logic that has protected birth control, same sex marriage, gay rights, and more.

    My wife and I met and married a little more than 2 decades ago. Had we met and married when we were in our late teens, our marriage would have been annulled. She and I would have been separated and imprisoned for 2 years under Missouri Criminal Code, Section 563.240, which specifically outlawed interracial marriage.

    That changed because of the 9th Amendment, which the 14th extended to state laws. The logic then used by SCOTUS meant the validity of our marriage was to be decided by us, not by whomever happened to compose a majority of the legislature of conservative, Republican Missouri.

    The logic behind that protection now will also disappear, along with that protecting other non-enumerated rights that were not already “deeply rooted.”

  22. rorschach says

    @16 “Is there really no way to get rid of SCOTUS Justices dubiously and invalidly appointed”

    The christofascist, the crumb maiden, the corrupt alcoholic rapist and the domestic terrorist trying to reverse the result of an election you mean? I doubt it. Americans are way too beholden to the perceived sanctity of their constitution, a dated document from the 18th century written up by white slave owners, and Biden is way too mentally sclerotic to even entertain such a move. Got to be polite and play by the rules after all. While the crazies dismantle education and women’s rights.

  23. Doc Bill says

    “Women will die.”
    Americans don’t care. Let ’em die. At least, a significant part of the population is this indifferent, but worse than that, a huge majority, perhaps a supermajority of elected representatives are indifferent or downright malevolent. Americans care more about the price of gasoline than life and death.

    Witness American’s response to Covid. A significant part of the population resisted simple public health measures in plain view of increased risk of death, and the actual death of a million of their fellow citizens.

    As for “returning the decision to the voters in the states,” what a grim joke that is! The voters don’t make the laws. Laws are passed by legislators who are bought and paid for by donors. In my red district I haven’t had a town hall or even seen my so-called representative in 20 years. Not even a survey in the mail. He only meets with donors and makes no bones about it. Our guy is anti-mask, anti-vax, anti-woman, anti-gay, anti-anything. He is only pro-donor.

    Alito knows this and it’s a game of cynical extremism that he is playing. He’s not going to outright ban abortion, rather he’s going to leave the dirty work to the miscreants who control state legislatures.

    If a million Americans died without even an acknowledgement, how many women need to die? Apparently, the answer is “all of them.” What a world we live in, until the rest of us get angry enough, motivated enough to vote out these creeps in spite of the restrictions and roadblocks. We must not give up, not lose heart but redouble efforts to rid ourselves of this theocratic cancer.

  24. houseplant says

    Two questions for Americans. I am not American so accept that these might be ill informed.

    -What is to stop Congress now passing a law that legalizes Abortion for the whole country ?
    -Does the US Supreme Court’s decision at least have a silver lining in that it means that they are admitting that they don’t have the right to rule on abortion either way ? If they can say that abortion is allowed by the constitution doesn’t that leave the option open that they could change their mind and say that the constitution forbids abortion ?

  25. raven says

    -What is to stop Congress now passing a law that legalizes Abortion for the whole country ?

    Nothing.
    They needs the votes though. They might have them now or they might not.
    A vote on this might take place soon.

    It works the other way also.
    The US congress could just vote to outlaw abortion throughout the whole country.
    A vote on this might take place soon.

    It could easily happen that abortion is legal or illegal depending on which party has the votes at any given time. It could seesaw back and forth.

    …that leave the option open that they could change their mind …

    This was a pure political decision.
    It has nothing to do with law, justice, religion, morality, medicine, or science.

    Stare Decisis is dead and they can change their mind as many times as they want. But judges are appointed for life so to change the vote would take decades. We have to wait for some of these old coots to die. The good die young. It’s going to take a long time.

  26. whheydt says

    Re: raven @ #27…
    The vote was held (well…a vote was held). It was a procedural vote and failed 51-49. Point fingers and Manchen.

    For the non-Americans… The US Senate permits endless debate. If one or more Senators decide to try to kill a bill by “debating” it forever, that’s called a filibuster. It used to be that, to do that, they actually had to stand there and keep talking. That is no longer the case. Now they just declare that they are mounting a filibuster and the bill is set aside (“tabled” in US usage) until they decide to stop blocking it or a vote to impose “cloture” (which places a time limit of–IIRC–100 hours on the debate) passes with a 60% majority.

    So unless you can round up 60 certain votes on your side in the present Senate, you bill doesn’t have a chance. Since the Senate is split 50-50 between the major parties (or their close adherents, ref. Bernie Sanders, elected as an “Independent” but caucuses with the Democrats) and there are a few “rogue” senators on each side–the aforementioned Manchen, for instance–but not enough to hit a 60 vote majority of either party is opposed.

    (Side note… Since Sanders was elected as an Independent, I just don’t get why he was allowed to even run as a Democrat.)

  27. whheydt says

    Re: Burr Deming @ #22…
    Unless you’re a lot older than it sounds like, you’d’ve been okay in California. Loving v. Virginia was decided in 1967 and that opinion drew on the California case in which the state Supreme Court tossed out California’s anti-miscegenation laws in 1949.

  28. says

    PaulBC (#3) –

    Science is supposed to be objective and normally avoids politics to protect that objectivity. But when objectivity is directly threatened by politics, speaking out becomes necessary.

    From September 2020:

    Scientific American Endorses Joe Biden

    We’ve never backed a presidential candidate in our 175-year history—until now

    Scientific American has never endorsed a presidential candidate in its 175-year history. This year we are compelled to do so. We do not do this lightly.

  29. StevoR says

    @ 24. rorschach : Yes, those SCOTUS Justices especially those inflicted on the nation by Trump and McConnell especially when Obama should have been able to appoint Merrick Garland when he wanted.

    Americans are way too beholden to the perceived sanctity of their constitution, a dated document from the 18th century written up by white slave owners, and Biden is way too mentally sclerotic to even entertain such a move. Got to be polite and play by the rules after all. While the crazies dismantle education and women’s rights.

    One side of American politics is being far too polite and playing by the rules – and Marquis of Queensbury rules ( https://en.wikipedia.org/wiki/Marquess_of_Queensberry_Rules) – whilst the other is NOT and is cheating and playing dirty and being allowed to get away with it. Time the metaphrocial umpire stepepd in, disqulaifed that dirty , rule vuiolating Republican side and disqualified them permently and started the game anew with better fairer clearer rules.

  30. John Morales says

    StevoR:

    One side of American politics is being far too polite and playing by the rules[…] whilst the other is NOT and is cheating and playing dirty and being allowed to get away with it.

    Might that be because one side will forgive anything (pussy-clutching, for example) and the other won’t? After all, in supposedly democratic politics, it’s the voters who supposedly hold parties accountable.

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