Fuck this guy straight to hell
Fuck this guy straight to hell Chip Somodevilla / GETTY

As you may have heard, someone leaked Justice Samuel Alito’s draft opinion arguing for the Supreme Court to overturn Roe v. Wade. Before we dive into the inconsistent contortions of logic that Alito employs to advocate for ending bodily autonomy overnight in at least 13 states, it’s important to make one thing clear: This opinion is not yet law.

What you’ve read about is just a leaked draft that Alito has apparently circulated to at least some of his fellow robed uber-legislators. That means if you need an abortion and could access one before Politico broke this news, you can still get one – for now. The final decision will likely be announced some time in June, but until then Roe is still the law of the land. [Note: Technically, Planned Parenthood v. Casey serves as the controlling opinion on abortion rights after it modified Roe in 1992, but that distinction isn’t practically useful for most people, so I’ll reference the two cases collectively as “Roe” throughout this piece.]

Now, onto the actual draft opinion. After reading all 98 pages of what amounts to nothing more than Federalist Society talking points, I’m here to say that we’d be here literally all day if I took the time to point out every logical inconsistency or false equivalency in Alito’s draft opinion. Instead, I’m going to save us all some time by briefly summarizing his arguments and then focusing on the most egregious examples of his galaxy-brain thinking.

To give the draft opinion more respect than it’s due, here’s what he essentially argues: Roe was decided using faulty logic, and the original opinion's failure to ground the right to an abortion in a specific Constitutional provision is fatal to the case. He rejects Roe's historical analysis of how American and English common law treated abortion, and he doesn't find millions of people's dependence on the existing law to protect their bodily autonomy sufficiently persuasive to keep it alive. As a result, the only option available to him in this situation is to void a landmark decision that has granted women unprecedented economic and personal freedom for more than 50 years without regard for public backlash.

Alito’s Beef with Roe’s Reasoning

The primary issue that Alito takes with Roe v. Wade is that he’s not particularly convinced by the rationale Justice Blackmun applied in 1973 to guarantee a federal constitutional right to an abortion. This argument has been a common refrain ever since the decision was handed down, and right-wing politicians and interest groups have used it ever since to help mobilize Christian evangelicals against “judicial activism” in order to bring them into the Republican Party.

In Roe, Blackmun grounded the right to abortion in the Constitution’s overall protection of the right to privacy, following the logic of similar cases at the time that protected the right to interracial marriage and the right to use contraception. And while the conservative legal movement has been arguing against the validity of this kind of analysis for decades, Alito doesn’t bother to make an argument justifying this conclusion. Instead, he simply asserts his conclusion as given:

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including on which the defenders of Roe and Casey now chiefly rely … That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’

You might be wondering why George Washington’s opinion on whether a woman with child drinking a potion to end her “quickening” should be determinative when considering a person’s right to access a safe and widely available medical procedure in 2022, but Alito can’t be bothered to address that concern. You might also wonder how, after 50 years of Roe guaranteeing the right to an abortion, upending that societal order with the stroke of a pen would somehow comport with anyone’s understanding of “ordered liberty,” but, again, Alito’s got nothing for you.

Instead, he prattles on for page after page about how his ability to peer through the mists of time and understand the cultural attitudes that led WASP majorities in State Legislatures to criminalize abortion before women were granted the right to vote supersedes Justice Blackmun’s exercise of “raw judicial power.” Could the wave of anti-abortion laws in the mid=1800s have been tied to spikes in immigration from places other than Western Europe, or to surges in organizing for women’s suffrage destabilizing the patriarchal dominance of the public square? Alito couldn’t care less.

All that seems to matter to him is the fact that those laws were passed, and accordingly he must overrule the impermissible legislating-from-the-bench that Blackmun engaged in when he wrote the opinion in Roe, and committed the sin of consulting with leading medical authorities such as the American Medical Association for guidance on how to balance the competing interests of protecting potential life and a woman’s bodily autonomy.

Don’t Boo, Vote / Fuck Your Feelings

The other truly heinous part of this opinion is the outright contempt dripping from Alito’s every word as he contends with the main reason the Supreme Court didn’t outright overturn Roe when they decided Planned Parenthood v. Casey 30 years ago. Here are two choice quotes from different parts of the opinion where he discusses the reluctance the Court expressed in Casey to overturn Roe due to fear that such a move would cause a widespread realization that the Supreme Court is nothing but a set of unelected uber-legislators contorting the law to arrive at their desired policy outcomes:

This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling people to move on…

[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.

Alito’s point here is that concern over the Court’s popular legitimacy must not impact the work of deriving the “correct” interpretation of the Constitution. In service of that argument, he draws false equivalency after false equivalency between what he alleges is the flawed reasoning of Roe and notoriously abhorrent cases such as Plessy v. Ferguson and Lochner v. New York.

Those cases, respectively, held that Black people weren’t sufficiently human to sue for their own rights, and that governments could not force corporations to pay minimum wages. They are universally regarded as some of the worst mistakes in the Court’s history. On the other hand, roughly half of the country’s voters fiercely defend Roe, and – as Alito repeatedly admits himself! – the case has not earned the level of reproach that the Court typically requires to overturn such a hotly contested precedent.

To deal with this obvious contradiction, Alito gestures broadly at state legislative elections as a mechanism for people dissatisfied with his ruling to change the law. What he conveniently fails to mention, however, is how thoroughly and systematically he and his conservative colleagues have rendered that option meaningless for poor people in Republican-controlled states.

Since he didn’t want to bring it up, let us count the ways the Supreme Court has balanced the scales in favor of Republicans:

Alito and his fellow conservatives have consistently refused to guarantee fair elections by making partisan gerrymandering illegal, allowed right-wing propagandists to drown out the voices of regular citizens with unfettered spending on political advertisements, overruled Secretaries of State who sought to make voting safer during the pandemic, gutted the Voting Rights Act’s protections for racial minorities living in states with well-document histories of voter suppression, and even decided a presidential election by stopping Florida’s recount in 2000.

So What Happens Now?

If you’ve made it this far without walking into the Sound out of despair, I commend you. The unfortunate reality of our federal system is that when this opinion (or some version of it) is handed down in June, laws in at least 13 Republican-governed states will be triggered and outlaw abortion entirely. Thirteen other states are working to ban or severely restrict abortion as well.

Here in Washington State, Democrats have already enacted a state law to protect the right to abortion even in the event of Roe’s repeal, so the local impact will be limited to increased numbers of pregnant people in neighboring states like Idaho seeking abortion care in WA.

Democrats in Washington D.C. could pass the Women’s Health Protection Act, a proposed law that would create a national right to abortion. Democrats have introduced the bill in every Congress since 2013, but it stood little chance of passing with Republicans in control of at least one chamber of Congress until 2020. However, with at least theoretical control of Congress and with Biden in the White House, there’s a possibility it could become law in the wake of our current national freakout.

In the meantime, donate to the Northwest Abortion Access Fund if you want to help poor people who can’t afford abortion care get the treatment they need, because apparently scrimping together what meager mutual aid we can manage is the best we can do in the face of an entirely predictable crisis that we’ve seen coming for thirty fucking years.