Alito's Arrogance and the End of Roe | Garrett Epps Washington Monthly

Alito's Arrogance and the End of Roe | Washington Monthly

By Garrett Epps

This may be just me, but one paragraph in Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization stands out for its thoroughgoing mix of hypocrisy and dishonesty. Advocates of legalized abortion, Alito writes, argue that “without the availability of abortion … people will be inhibited from exercising their freedom to choose the types of relationships they desire, and women will be unable to compete with men in the workplace and in other endeavors.”

But, Alito explains, the foes of abortion have the answer to this lament:

They explain that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; and that a woman who puts her new­born up for adoption today has little reason to fear that the baby will not find a suitable home. They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.

Now there are three things wrong with this rosy picture of childbirth. First, the all-caring nanny state that Alito describes—guaranteeing medical care, pregnancy leave, and freedom from discrimination—not only does not exist for most Americans but also has been blocked in large part by Alito and the others who form his majority (we do not know whether he has five votes or six, though he writes with the assurance of a ward heeler who knows the fix is in to stay). As of 2020, 91.4 percent of Americans do have some form of health insurance—but 30 million Americans do not. One reason that many do not is that the Court’s conservative majority went out of its way to gut the Medicaid expansion provision of the Affordable Care Act, which offered health insurance to lower-income Americans; as a result of that decision, conservative states have refused to allow families within their borders to take advantage of this program. Since then, Alito himself, with the conservative majority, has made it clear that any employer with the vaguest kind of religious objection to contraception doesn’t have to provide insurance that covers it—a gap that harms women in particular. Nor is this conservative majority particularly concerned with the injustice of sex discrimination on the job (remember Lilly Ledbetter?).***

***[Justice Samuel] Alito insists that abortion is different from any other right “because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘un­born human being.’” 

Thus, “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. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

We have Sam Alito’s word on that; many do not find that reassuring (I am one) and predict a renewed assault on contraception, LGBTQ rights, and same-sex marriage. That may come, but as scripture says, “Sufficient unto the day is the evil thereof,” and this day has enough present evil to occupy us here and now. For the moment, the nation should focus on the very real and immediate effects this contemptuous judicial coup de main will inflict on real women, children, and families as soon as the edited version (even if softened in the editing process with soothing John Roberts–style rhetoric) is released.

For the same reason, I think that the swoons of horror coming from the right at this leak may safely be ignored. There have been leaks before—most recently when someone on the conservative side of the Court leaked that Chief Justice Roberts had changed his vote in the Obamacare cases. (That was done to pressure Roberts to conform to the conservative attack on the Affordable Care Act.) Leaks from the Court are not new, but they have been rare and (rightly) regarded as dishonorable.

But those were in a very different country, and besides, that Court is dead. The Court that readies itself to gut American women’s reproductive rights is a very different beast. This Court has been transformed—in the broad light of day, with the collaboration of at least the three Trump appointees, who willingly joined the Trump/McConnell project—into an extension of the Republican Party. Its majority members are willing to troop to the McConnell Center in Louisville to bend the knee before their partisan patron and to do his bidding under cover of their black robes.

Justices like to speak of Congress and the president as the “political branches,” implicitly claiming for the Court a place as “nonpolitical” and above partisan reproach. That locution is achingly obsolete today; few institutions in the United States are as openly partisan as the post-Trump Supreme Court.

So here, dear justices, is a lesson in politics. The White House and Congress must deal with leaks, and now so must you. Leaks are a fact of political life. Get used to them.