The Supreme Court draft ruling overturning Roe v. Wade raises just as many arguments and counterarguments as the original ruling that Justice Samuel Alito excoriated in his opinion, leaked this week to Politico. Alito’s assertion that abortion rights don’t fall under the 14th Amendment, and that the Constitution makes no mention of abortion as a right, calls into question a wide range of other supposed rights for which no mention of any kind appears in the Constitution.
Alito basically would establish an entirely new bar for basic rights that cannot be met under a strict reading of the Constitution — not just including divisive issues such as gay marriage but also whether there is a right for gun owners to possess ammunition. The Constitution doesn’t specifically spell out a right for interracial couples to marry. Under Alito’s rationale, all those supposedly settled issues, widely accepted as basic rights, now could be subject to challenge.
Alito argues the opposite, saying that this draft ruling applies only to the rights of the unborn. But under his rationale, the Constitution offers no spelled-out rights to the unborn. In fact, it specifically excludes the unborn from having rights under the very 14th Amendment that Alito dissects as the basis for the conservative majority’s opinion.
Consider the amendment’s opening phrase: “All persons born or naturalized in the United States and subject to the jurisdiction thereof … ” followed by the stipulation that no state shall “deprive any person of life, liberty, or property,” without due legal process and equal protection.
That opening paragraph specifically applies to women as a subset of all people who qualify as having been born — and it specifically does not apply to those who have not yet been born.
These are painful words to parse in such a literal way when talking about humans’ lives, but that’s the standard Alito himself is setting. This is what the Constitution says and doesn’t say. Yet Alito and the conservative majority have decided that the rights of the unborn supersede those of women even though no wording in the Constitution specifies any such distinction.
This ruling, if it survives, could force an impregnated woman in 33 states to give birth, in some cases like Missouri regardless of whether she is the victim of rape or incest.
Let the states decide without court intervention, Alito says. Yet court conservatives do favor taking away states’ rights on other divisive issues, such as limiting gun ownership and usage, even when the Constitution is squishy about such rights.
It appears that the majority only seeks a literal interpretation of the Constitution when it suits conservative justices’ political or religious beliefs. But when the wording doesn’t suit them, they simply ignore it. A court whose politics overshadow reasoned constitutional interpretation is a court whose legitimacy deserves all the public scrutiny it’s now receiving.