- Four were nominated by presidents who lost the popular vote, and three of them were confirmed by senators who represented less than half the population.
- Three lied to the Senate about Roe v. Wade being โsettled law.โ
- Two were credibly accused of sexual harassment or assault.
- One is sitting in a seat stolen under made-up Senate rules.
- Another was rushed through just before a president lost reelection and his party lost control of the Senate.
- Another is married to a conspiracy theorist who actively participated in plotting a coup.
Letโs not pretend that Justice Alitoโs screed is rooted in the law, history, science, or anything except sneering contempt for womenโs autonomy.
Letโs not pretend that anyone actually gives a shit about who leaked it.
And letโs not pretend theyโre going to stop here.
Alito, of course, went out of his way to say they would stop here, to assure us that abortion exists on its own moral plane. โNone of the other decisions cited by Roe and Casey involved the critical moral questions posed by abortion.โ
Thatโs absurd. And the implication that this decision is a one-off is an obvious lie in two ways.
The first is direct: The foundation on which the constitutional right to abortion has existed for the last 49 years protects other civil rights that are now in a very perilous place.
The second is unimaginably broad. By overturning Roeโone of the most litigated cases of the last centuryโfor no other reason than they really, really wanted to, the Alito 5 is signaling that anything goes. Precedent is irrelevant. The old rules no longer apply. This is the Court of LOL, Nothing Matters.
Donโt believe me? In Texas on Wednesday, Gov. Greg Abbott said he wanted to revisit Plyler v. Doe, a 1981 case in which the court ruled that states must provide a public education to undocumented immigrants. Whatโs changed? โThe times are different.โ
That might prove a bridge too far even for this crew. Or not. Who knows?
But for now, letโs return to the direct threat.
Roe determined that the constitutional right to abortion lay in the Due Process clause of the 14th Amendment, which says that no state shall โdeprive any person of life, liberty, or property, without due process of law.โ
Beginning in a 1965 decision striking down a Conneticut law that banned married couples from using contraceptionโfollowed by decisions that legalized interracial marriage in 1967 and contraception for unmarried couples in 1972โthe court interpreted deprivations of liberty to include intrusions on privacy.
Roe was the fruit of that tree. So, too, were decisions that legalized same-sex intimacy in 2003 and same-sex marriage in 2015.
Alito, however, says there is no right to privacy and, thus, no right to abortion, because it is not โdeeply rooted in this Nationโs history and traditionโ and โessential to our Nationโs scheme of ordered liberty.โ โAn unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of common law until 1973,โ Alito writesโmangling history and relying on a 17th-century rape apologist who hanged โwitches.โ “The only rights ‘deeply rooted’ in history are those the straight white men who presided over that history recognized.”
(Coincidentally, there were no women among the 55 framers of the Constitution. But there were many men who enslaved other humans, and one guy who died after sticking a whale bone up his penis. True story.)
The rights to same-sex marriage, same-sex intercourse, birth control, and even interracial marriage only emerged in the last 60 years. Theyโre not, by definition, โdeeply rooted.โ They also sprang from the notion that privacy is inseparable from liberty. Alito separates them.
Since privacy isnโt a right, the governmentโthe always informed and rational members of state legislaturesโshould make healthcare decisions for you.
If youโd like to see where this is headed, look to Louisiana, where the legislature is considering a bill that will declare a fetus a person from the moment of fertilizationโnot implantation, just fertilizationโand charge women and abortion providers with homicide. No exceptions for rape or incest, or to save the motherโs life. (The law directs law enforcement to ignore any state or federal court that gets in the way.)
Thatโs not just an abortion ban. Thatโs also a ban on plan B and in vitro fertilization, which causes thousands and thousands of fertilized embryos to be discarded each year.
Or look to Missouri, where Republicans are trying to figure out how they can not only ban abortion in their state, but make it illegal to provide abortion services to Missouri residents in other states, too.
If youโre wondering how theyโll track down women who cross state lines, New York Magazineโs Intelligencer has the spine-chilling answer: โMissouri provided a hint when its state health director testified in the fall of 2019 that heโd compiled a spreadsheet of Planned Parenthood patientsโ last menstrual periods.โ
This is post-Roe America. Republican legislatures are going to see how far they can push the envelope, and, until its composition changes, the Supreme Court is going to tell them to keep pushing further.
This article appears in May 5-11, 2022.

