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Abortion Questions for Justice Alito and His Supreme Court Allies

Now that the Oklahoma State Legislature has voted to ban abortion from the moment of conception, I have a few questions for Justice Samuel Alito and any others who would join him in overturning Roe v. Wade:

What is your reaction to the news from Oklahoma? The State Legislature gave final approval last Thursday to a bill that would prohibit nearly all abortions, starting at fertilization. It now awaits the signature of the governor, who has pledged to make Oklahoma “the most pro-life state in the country.”

Does it thrill you to see the project of your judicial lifetime about to come to fruition?

Or does it trouble you, even just a bit, to see what your judicial activism has unleashed?

I suppose we’ll be able to infer the answers to my questions once Justice Alito’s leaked draft opinion in the Mississippi abortion case is tidied up and properly released. The opinion will, no doubt, contain some language about abortion restrictions requiring at least a rational basis. While such language might appear to offer an opening to attack an irrational law like Oklahoma’s, remember that the court refused to meaningfully intervene when it came to the only slightly less categorical “heartbeat” law in Texas that is driving women to flee the state in search of reproductive health care.

And that’s the future that Oklahoma shows us — no longer an abstraction but an actual fact, on the ground of 21st-century America. Sure, the Oklahoma law provides exceptions for abortions needed to save a pregnant woman’s life or to terminate pregnancies resulting from rape or incest if the crimes were previously reported to the police; good luck to the 13-year-old raped by a male relative.

If Justice Alito and his allies care to look, they will see a future in which American women, traveling to states where abortions are still readily available, are pursued by vigilantes seeking bounties.

Justice Alito likes to invoke history — although many of the historical references in his draft opinion were misleading or downright bizarre. Has he ever heard, for instance, of the Fugitive Slave Act?

In 13 states, post-Roe anti-abortion laws will spring to life when the 1973 decision is overturned or soon after, and states are, like Oklahoma, passing new laws designed to take advantage of the opening the court is likely about to provide. Does Justice Alito know who said, “I believe this government cannot endure, permanently half slave and half free”? It was Abraham Lincoln, in his “House Divided” speech of 1858.

I hope my law school friends and colleagues will forgive me, but I am tired of talking about the right to abortion in terms of constitutional doctrine. I have spent years, as they have, in urgent conversation about due process and undue burdens, extrapolating from the opacities of Planned Parenthood v. Casey, the 1992 decision that against all odds reaffirmed the essence of Roe v. Wade, thanks to three Republican-appointed justices who were supposed to do the opposite.

It hasn’t worked. The current Supreme Court majority will do what it will do, which is to say what it was put there to do. There is no burden from an undesired pregnancy that is undue, or at least one that can’t be alleviated by putting the baby in a basket and leaving it somewhere safe, as Justice Amy Coney Barrett suggested during the oral argument in December — an idea that Justice Alito incorporated in his draft opinion.

Would the right to abortion have been on firmer footing had it been based on the Constitution’s explicit guarantee of equal protection, as Justice Ruth Bader Ginsburg famously argued, rather than the implicit right to privacy? Who cares? After all, as Maureen Dowd reminds us, the doctrine to which the justices in the court’s conservative majority, all of whom were raised Catholic, is responsive may not be the framers’ but the bishops’. And what about the doctrine of stare decisis, which calls on judges to stand by precedents? Justice Clarence Thomas, speaking this month at a judicial conference in Atlanta, let us know what to think about that. “We use stare decisis as a mantra when we don’t want to think,” he said.

Whether out of habit or simple nostalgia for a time when the Constitution mattered to the court, I will end this essay with a constitutional proposition, one fit for a future in which women experience reproductive freedom in roughly half of these United States. Since nothing else seems to be working, I’ll swing for the fences. The 13th Amendment, adopted after the Civil War, prohibits both slavery and “involuntary servitude.” What is forcing a woman to carry a pregnancy to term if not involuntary servitude?

I claim no credit for this idea. Feminists invoked the 13th Amendment in a brief to the court during Roe v. Wade. And Andrew Koppelman, a law professor at Northwestern University, has been making the 13th Amendment argument as an originalist matter for years, drawing in part on the long history of enslaved women’s involuntary childbearing. Irin Carmon’s graphic description in New York magazine of the burdens of pregnancy, aimed at the Alito draft opinion’s obliviousness to women’s interests, has been making the rounds in feminist circles. While her essay, “I, Too, Have a Human Form,” does not make an explicit 13th Amendment argument, it could serve as Exhibit A in such a case.

Anyone who offers a serious 13th Amendment argument risks being dismissed as a chaser of “fool’s gold,” as Professor Jamal Greene of Columbia Law School put it in a 2012 journal article, “Thirteenth Amendment Optimism.” So, yes, it’s a fantasy. But maybe the moment has come for fantasy, the reality of a modern nation without legal abortion having failed to move the current majority.

The message of the Alito draft is that the age of constitutional argument is over. There’s a case to be made that it died a long time ago, but in any event, here is my final question to the justices: What, other than raw power, will take its place?

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