Is Alito's Plan to Repeal the 20th Century?

If you are an American with a young daughter, she will grow up in a world without the right to choose when and where she gives birth, and in which nothing restrains a state from declaring her womb its property, with all the invasive authorities that implies.

That is the significance of the draft Supreme Court opinion leaked to Politico, which shows that the right-wing majority on the Court intends to discard Roe v. Wade and Planned Parenthood v. Casey, landmark precedents guaranteeing the constitutional right to abortion. The justices can change their minds before judgments are issued, but their opinions are drafted after they’ve taken an initial vote on the cases themselves. The draft likely reflects the direction of the final decision, even if the scope of that decision changes.

The draft, written by Justice Samuel Alito, is sweeping and radical. There is no need to dwell too long on its legal logic; there are no magic words that the authors of prior opinions might have used in their own decisions that could have preserved the right to an abortion in the face of a decisive right-wing majority on the Court. The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification. Alito, like the five other conservative justices, was placed on the Court by the conservative legal movement for the purpose of someday handing down this decision. These justices are doing what they were put there to do.

Alito claims to be sweeping away one of the great unjust Supreme Court precedents, such as Dred Scott v. Sanford, which held that Black people had no rights white men were bound to respect, or Plessy v. Ferguson, which upheld racial segregation. But in truth, Alito is employing the logic of Plessy, allowing the states to violate the individual rights of their residents in any way their legislatures deem “reasonable,” as the opinion in Plessy put it. Homer Plessy’s argument was that the segregation law violated his Fourteenth Amendment rights, and that those rights should not be subject to a popularity contest in every state in the union; what Alito describes as a “restrictive regime” of constitutional protection for abortion rights is the kind of safe harbor Plessy himself sought.

In Plessy, Justice Henry Billings Brown held that Louisiana’s segregation law, as far as the Fourteenth Amendment was concerned, “reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature.” Alito has now applied this same logic to abortion—but not just abortion—arguing that in the future, courts should defer to state legislatures “even when the laws at issue concern matters of great social significance and moral substance.” There’s no doubt that the Louisiana legislature felt the 1890 Separate Car Act was such an issue.

“Plessy is, at its absolute core, a states’-rights case, in which the Court envisioned a notion of federalism so weak, so toothless, so bereft of substance that the federal government had no legitimate role in protecting Black people from states imposing racial segregation upon them,” Aderson Francois, a law professor at Georgetown University, told me. “This draft does the same thing: It envisions a notion of federalism so weak, so toothless, so bereft of substance that the federal government has no legitimate role in protecting women from states imposing forced births upon them.”