Analysis: The Missing Person in Alito’s Draft Opinion Overturning Roe v. Wade

Alito, Thomas, Gorsuch all rule against Biden commander in chief powers

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The leaked opinion penned by Supreme Court Justice Samuel Alito in the Dobbs v. Jackson Women’s Health Organization has, needless to say, generated substantial controversy.

Alito’s draft of the majority opinion signals, we all know, the court’s prospective reversal of the landmark 1973 decision in the case of Roe v. Wade, which sanctified a women’s right to an abortion and, overall, to control her body and make decisions about her own health and well-being, particularly when it came to her reproductive health.

While we all know the stakes of the opinion, it is also crucial and productive to understand how the logic—or, in this case, illogic—of how the opinion makes its arguments and arrives at its decision that the Constitution does not guarantee abortion rights.

Less attention has been given, in discussions and analysis in the media, to the actual text of Alito’s opinion, especially the heinous cultural assumptions and curiously faulty historical analysis and reasoning, which I believe is important to do in order effectively to challenge and build mass resistance to the opinion.

In my next few pieces in PoliticusUsa, I will engage Alito’s opinion in textual analysis, highlighting elements that are damaging, ridiculous, and often simply illogical, drawing attention then to the fact that this opinion is in the end an overwhelmingly ideological piece rather than serious or substantive legal argument. Engaging the text in this close and serious way has the benefit of drawing into the relief the ugly cultural assumptions and regressive treatments and comprehensions of history that serve as so much legal mumbo jumbo and verbiage to disguise in polite terms the crassest misogyny and authoritarianism.

In this opening piece I want to address the way an ideological misogyny informs and undergirds Alito’s writing with varying degrees of subtlety, substituting for real argument and even obfuscating the lack of real argument.

Let’s begin, though, with some recent history that provides an important context to understand when reading Alito’s opinion.

Back in 2011, the late Supreme Court Justice Antonin Scalia outraged many Americans when he remarked, referring to the prospects of including an Equal Rights Amendment (ERA) in the Constitution, that “nobody ever voted for that.”

Scalia made it clear that, the 14^th Amendment notwithstanding, in his view the Constitution in no way contained provisions for equal rights for women. Insisting that if that if “society wants to outlaw discrimination by sex, hey, we have things called legislatures.”

In short, in Scalia’s worldview discrimination against women is perfectly constitutional and allowable and women are not viewed as equal in the context of the Constitution. Despite the fact that the 14^th amendment includes the clause “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” Scalia eschews the basic assertion of the ERA that, “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.”

In short, for women not to been seen as having the constitutional right to equal protection under the law, they must not be considered people, as Terry O’Neill, then President of the National Organization for Women pointed out back in 2011: “A man in power like Antonin Scalia insists that the word person in the 14th Amendment doesn’t apply to half the population of the United States,” she said.

We have to think that the failure to pass the ERA over decades paved the way for Alito’s opinion.

This brief background is important for understanding Alito’s opinion because the unspoken premise of Alito’s “argument,” never articulated forthrightly, is that women are not people but fetuses are.

Indeed, there is a missing person in Alito’s opinion, and that person is the woman.

Let’s look at the way that women’s histories, experiences, and perspectives are elided from Alito’s text.

In section I of the opinion (beginning on page 6), Alito lays out what he calls “factual findings” in Mississippi’s Gestational Age Act. He details how the act spells out when the fetus has a heartbeat, hair and fingernails, functioning vital organs, and so forth. He concludes this paragraph, supposedly devoted to “factual findings,” quoting the Act’s description of abortion procedures and its conclusion that

“intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”

This last clause is hardly factual finding and betrays a severely prejudicial and one-sided perspective and set of assumptions, absolutely erasing the voices and experiences of millions of women and health practitioners.

Many women, as we know, consider an abortion as part of caring for their health, not as something “dangerous.”

And we know that many health professionals view abortion not as “demeaning” but as a dignified and responsible way of tending to women’s health and well-being.

Alito here quite prejudicially speaks for women’s interests and for health professional while effectively silencing them in this piece.

Indeed, while he insists “our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests,” the entire opinion is premised on the supposition that a fetus is a life, and Alito speaks more to the interests of the fetus than of women. And we know why—because, similar to Scalia, Alito is working on the premise that the Constitution does not in fact recognize a woman as a person.

Again, America’s failure–refusal–to pass the ERA and acknowledge women’s equality will have significantly enabled the Supreme Court in overturning Roe v. Wade, should it happen.

As we will se in the next piece in this series, Alito repeatedly glosses over and largely, if not completely ignores, the actual historical and material experiences of pregnancy, childbirth, and motherhood, particularly as they impact women’s autonomy, liberty, and equal rights, giving much more attention to the fetus.

He repeatedly argues that abortion is not a right “deeply rooted in the Nation’s history and traditions,” viewing these historical and cultural condition as criteria for determining whether or not abortion is a constitutional right.

But we have to notice from whose perspective he is assessing the nation’s historical and cultural traditions.

Put mildly—and I say this as a professor of American literature and culture—I feel safe saying Alito is not at all looking at the history of women’s cultural traditions, political thought and struggles, and actual historical experiences in making this claim.

Indeed, there is a missing person—and a missing perspective–in Alito’s opinion, and I will explore this dangerous disappearance, this elimination, in the pieces following in this series.

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Tim Libretti

Tim Libretti is a professor of U.S. literature and culture at a state university in Chicago. A long-time progressive voice, he has published many academic and journalistic articles on culture, class, race, gender, and politics, for which he has received awards from the Working Class Studies Association, the International Labor Communications Association, the National Federation of Press Women, and the Illinois Woman's Press Association.