Alito's Opinion Shows Roe is Only the BeginningRoundup
tags: conservatism, abortion, patriarchy, Samuel Alito, reproductive rights
Thomas Zimmer is a visiting professor at Georgetown University, focused on the history of democracy and its discontents in the United States, and a Guardian US contributing opinion writer.
The supreme court is set to overturn Roe v Wade, this much has been clear since a draft opinion authored by Justice Samuel Alito was leaked earlier this month. An attempt to safeguard abortion rights via national legislation was blocked by a united front of Republicans plus Democrat Joe Manchin in the Senate last week. As a result, we must expect abortion to be banned in roughly half the country soon.
It is very hard to overstate how significant this moment is. The US is about to join the very short list of countries that have restricted existing abortion rights since the 1990s – the overall trend internationally certainly has been towards a liberalization of abortion laws. And it’s also a basically unique development in US history: while the supreme court has often upheld and codified a discriminatory status quo, it has never actively and officially abolished what had previously been recognized as a constitutionally guaranteed right.
The overturning of Roe v Wade and Planned Parenthood v Casey constitutes the culmination of half a century of conservative legal activism, and rejecting Roe has been a key element of conservative political identity for decades. But the impending end of Roe will still not magically appease the right. Attempts to institute a national ban are likely to follow. The people behind this anti-abortion rights crusade consider abortion murder and the epitome of everything that’s wrong and perverted about liberalism – they will tolerate the right to bodily autonomy in “blue” America for only as long as they absolutely have to.
And the conservative vision for the country goes well beyond outlawing abortion. In his opinion, Justice Samuel Alito rejects the legal underpinnings of many of the post-1960s civil rights extensions that were predicated on a specific interpretation of the 14th amendment. He targets the very idea of a right to privacy, employs an extremely narrow view of “substantive due process” and claims that the 14th amendment protects only those rights not explicitly listed in the constitution that are “deeply rooted in this nation’s history and tradition”. Alito applies an arbitrary standard – one that birth control, marriage equality and even desegregation clearly don’t meet. The fact that he adds a throwaway paragraph claiming that these rights, all based on the very understanding of the 14th amendment Alito so explicitly rejects, are not in danger, shouldn’t put anyone at ease.
Alito’s opinion precisely captures the essence of the supreme court’s role through most of history, and certainly today: an institution siding with tradition over change, with existing power structures over attempts to level hierarchies, with the old over the new. That’s the spirit the “deeply rooted in history and tradition” standard seeks to enshrine as dogma: established hierarchies are to be revered and protected, anything that threatens them is illegitimate. It’s a dogma that is utterly incompatible with the idea of a fully functioning multiracial, pluralistic democracy in which the individual’s political, social and economic status is not significantly determined by race, gender, religion, or sexual orientation. For conservatives, that’s exactly the point, and it is how Alito’s opinion fits into the broader assault on the post-1960s civil rights order: it’s all part of a multi-level reactionary counter-mobilization against multiracial pluralism.
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