Process
Status Items Output None Questions None Claims None Highlights Done See section below
Highlights
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Roe v. Wade, he says, was wrongly decided. This is because “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Alito admits that some rights unmentioned in the Constitution may still be protected by it, but such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The right to an abortion, Alito says, has no roots in “tradition,” because “until the latter part of the 20th century, such a right was entirely unknown in American law” and the procedure was criminalized in many parts of the country. In fact, he says, for hundreds of years “great common-law authorities like [Henry de] Bracton, [Sir Edward] Coke, [Sir Matthew] Hale, and [Sir William] Blackstone all wrote that a post-quickening abortion was a crime—and a serious one at that.” In fact, in both English and American law there was “an unbroken tradition of prohibiting abortion on pain of criminal punishment.”
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For Alito, it is very important that “traditionally” there was no fixed right to an abortion, and that the right does not appear in the Constitution. It is a recent right, and for Alito, it is therefore suspect, because as an “originalist,” he believes his job as a justice is to uphold the Founding Fathers’ vision for the constitutional order.
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none of this history should matter at all, for a very simple reason: until 1920, the United States was officially a patriarchy. The Supreme Court’s decisions about rights were made entirely by men until Sandra Day O’Connor joined the Court in 1981. It’s still the case that only 27 percent of federal lawmakers are women, which itself is a 50 percent increase compared to how many there were just a decade ago. Women had no input into the writing of the Constitution—John Adams literally laughed off his wife Abigail’s plea to “remember the ladies” when drafting the nation’s founding charter. (“I cannot but laugh. … We know better than to repeal our masculine systems,” he wrote to her.) The great legal scholars Alito cites for their authority on natural rights are men named Henry, Edward, William, and Matthew, who likely spent their entire careers without once wondering whether women might have valuable things to say on the topic of their own rights.
✏️ patriarchy
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Unless we are still to live in a patriarchy, we can give absolutely no weight to conceptions of women’s rights that came before women were allowed to participate in politics and law. Let us assume that Alito is entirely correct about his history, and that abortions were widely criminalized in the 19th century, and that the idea of a basic right to abortion does come from the “latter part of the 20th century.” What of it? The laws were being made by men, i.e., they were undemocratic and illegitimate. A court that uses the 19th century definition of women’s rights to decide which rights the Court is bound to protect today is explicitly imposing the past’s patriarchy on the present. It’s a shocking act of turning back the clock, and yet Alito seems unaware that there’s even an issue with citing “traditional” (i.e., patriarchal) rights to decide which rights women have in 2022.
✏️ The past imposed on the present