The Most Radical, Ominous Aspect of Alito’s Draft Opinion Overruling Roe

The Most Radical, Ominous Aspect of Alito’s Draft Opinion Overruling Roe

Mark Joseph Stern — Read time: 7 minutes

BY MARK JOSEPH STERN

MAY 03, 20225:25 PM.

The draft decision leaves abortion in the hands of “the people’s elected representatives.” But which ones?

Justice Sam Alito’s leaked opinion overturning Roe v. Wade is full of startling, if not unexpected, condemnations of abortion and its defenders. But the most staggering aspect of all may be what Alito doesn’t say. In the past, justices urging Roe’s reversal have called on the court to return this question to the states, allowing each state legislature to determine the legality of abortion. This language is conspicuously absent from Alito’s draft, which substitutes federalism with hazier rhetoric that seems designed to boost abortion foes’ next goal: persuading Congress to pass a federal law restricting or banning abortion in all 50 states.

This case, Dobbs v. Jackson Women’s Health Organization, involves only state regulations. But the ultimate aim of the anti-abortion movement has always been a nationwide ban that overrides blue state efforts to preserve abortion access. And the Dobbs draft takes pains not to preempt any future law that ends all legal abortion in America.

Anti-abortion groups are already working with Republican lawmakers to push for a federal ban after Roe falls.

Because Alito does not tip off the possibility of congressional involvement, it’s easy to miss how his opinion tees it up. On multiple occasions, the justice writes that overturning Roe returns the abortion debate “to the people and their elected representatives.” But which representatives? State legislators, or members of Congress? Alito does not tell us. He is, in fact, careful to avoid specifying how “the people” can respond to his decision, largely circumventing any wording that suggests abortion rights should be decided state-by-state.

Alito’s approach is markedly different from the one taken by past conservative justices—including Antonin Scalia and Clarence Thomas, who led the battle against Roe for decades. In 1992’s Planned Parenthood v. Casey (which Alito also overturns), Scalia framed abortion as a matter of state authority. “Profound disagreement” over reproductive rights, he wrote, should be “worked out at the state level,” as they were before Roe. “As with many other issues,” Scalia asserted, “the division of sentiment within each state was not as closely balanced as it was among the population of the nation as a whole, meaning not only that more people would be satisfied with the results of state by state resolution, but also that those results would be more stable.”

This belief was not incidental to Scalia’s opposition to Roe; it lay at the heart of his argument. Roe’s flaw, he wrote, was not just that it put abortion in the hands of unelected judges, but also that it sought a single standard across the 50 states. The justice expressly disclaimed the notion that abortion could “be resolved uniformly, at the national level.” In 2000’s Stenberg v. Carhart, Scalia declared that the court should return abortion “to the people—where the Constitution, by its silence on the subject, left it—and let them decide, state by state, whether this practice should be allowed.” Other conservative justices echoed Scalia, depicting abortion as a policy dispute that the Constitution leaves in the hands of state legislatures. Along with Thomas, he even suggested that Congress may have no constitutional authority to regulate abortion.

Such federalism language is almost entirely missing from Alito’s draft opinion. Instead, the justice is cagey about who, exactly, has the ultimate authority to outlaw abortion. Several sections of the draft gesture toward states’ rights—most notably, a passage canvassing states’ criminal abortion laws in the 19th century. But this discussion is meant to prove that abortion isn’t “deeply rooted” in American history, not that it is the sole province of the states. Alito comes closest in his conclusion, which says that the Constitution “does not prohibit the citizens of each State from regulating or prohibiting abortion.” But this line comes shortly after an analysis of the Mississippi law challenged in this specific case. So it reads like an affirmation that Mississippi can ban abortions before fetal viability rather than a broader proclamation about states’ rights.

It’s not hard to guess why Alito would refrain from portraying abortion as a matter for the states to resolve. Anti-abortion groups are already working with Republican lawmakers to push for a federal ban after Roe falls. The Washington Post reports that leaders of the anti-abortion movement are pushing for a six-week ban—which would, in reality, give patients less than two weeks to terminate a pregnancy. Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List, has discussed the idea with Republicans who hope to run for president in 2024; most, she told the Post, agreed to “make that policy a centerpiece of a presidential campaign.” At least ten other organizations are asking GOP members of Congress to commit to a six-week ban.

Congress is already weighing its post-Roe options. As of this month, 19 senators and more than 100 representatives—all Republicans—have cosponsored sweeping legislation that would grant legal personhood from the “moment of fertilization.” This law would prohibit all abortions at every stage of pregnancy, as well as many common IVF procedures, by granting due process and equal protection rights to fetuses and embryos. Other more incremental bills would make it a federal crime to transport a minor across state lines to help her terminate a pregnancy without parental consent. At a bare minimum, Republicans appear dead set on enacting a federal ban at 15 or 20 weeks, nullifying state laws that allow abortion later in pregnancy.

Had Alito endorsed Scalia’s federalism approach, he would have risked foreclosing these opportunities for congressional limits. So he abandoned that limiting principle, replacing it with a vague appeal to democracy writ large.

No one should be fooled. The days of conservative justices rejecting an abortion regime “at the national level” are over. Even Justice Brett Kavanaugh, ostensibly the most moderate member of Alito’s majority, mused during oral arguments in December that “perhaps Congress” should “resolve” abortion. Anti-abortion advocates who sincerely believe that abortion is homicide will never settle for a state-by-state compromise. Unless Alito’s opinion undergoes substantial changes before publication, it will give these activists precisely what they crave: implicit permission to parlay their victory into a crusade for the nationwide criminalization of all abortion.