From the New York Times:
Yes, the leak of the draft opinion that would overturn Roe v. Wade was a shock. And it was shocking to read Justice Samuel Alito’s airy dismissal of a decision the Supreme Court has reaffirmed numerous times in the past 49 years as “egregiously wrong from the start.” That was on Page 6 of the draft opinion that Politico published last Monday, and Justice Alito spent the next 61 pages explaining why, in his view and perhaps ultimately in the view of four other justices, the court needs to overturn Roe now.
But the real shock to me was not what those 67 pages contain — mostly warmed-over stock phrases from the anti-abortion playbook that read like a law clerk’s cut-and-paste job — but rather who is missing: women.
Women were largely absent from Roe v. Wade too. While Roe exists in the culture as some kind of feminist screed about the right to abortion, it was anything but that. If people set preconceptions aside and actually read Justice Harry Blackmun’s opinion, they would see that Roe was really a decision about the right of doctors to exercise their judgment about a patient’s best interest without risking prosecution and prison. How else to interpret this summary sentence from near the end of the opinion? “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.”
But the real shock to me was not what those 67 pages contain — mostly warmed-over stock phrases from the anti-abortion playbook that read like a law clerk’s cut-and-paste job — but rather who is missing: women.
Women were largely absent from Roe v. Wade too. While Roe exists in the culture as some kind of feminist screed about the right to abortion, it was anything but that. If people set preconceptions aside and actually read Justice Harry Blackmun’s opinion, they would see that Roe was really a decision about the right of doctors to exercise their judgment about a patient’s best interest without risking prosecution and prison. How else to interpret this summary sentence from near the end of the opinion? “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.”
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That was then. Forty-nine years later, we live in a different constitutional universe — or thought we did. Mississippi, defending a ban on virtually all abortions after 15 weeks of pregnancy that is flatly unconstitutional under current Supreme Court precedents, is asking the court to overturn those precedents. Granted that the young Samuel Alito, as a recent Princeton graduate, joined an organization of conservatives who sought to limit the inclusion of women at his alma mater. Granted that he has made clear his desire to overturn Roe since even before his days on the court. It is still astonishing that in 2022 he would use his power to erase the right to abortion without in any way meaningfully acknowledging the impact both on women and on the constitutional understanding of sex equality as it has evolved in the past half-century.
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