This Is About Women's Rights

Alito Elides the Key Questions: When Does Life Begin, and Who Should Have Final Say?

Supreme Court Justice Samuel Alito is wrong.

That’s the gist of a column I wrote and posted yesterday that will run in the Progressive Populist in a few weeks, that I made available in preview form to paying subscribers. The column elicited some response — endorsement of my argument from some, criticism from others. None of the responses surprised me; instead, they confirmed something I’ve long believed: That there is little room for compromise on the issue because those who are most interested and passionate about it view all discussion from their specific vantage point, from how they answer the essential question.

When does human life begin?

Alito in a draft of an opinion leaked to Politico elides this question. He doesn’t ignore it, but his answer is assumed so that debate over this singular question can be ignored. His answer — that it begins at conception — then stands as one of the premises of his argument. This underpins his reading of history — which interestingly ends for him at Roe and ignores nearly 50 years in which the law has allowed for abortion. History and tradition, for Alito, appears to date only to what we’ll call the “before time,” or the time before the rights revolution of the 1960s and 1970s. It also dismisses — by ignoring completely — the very real debate that has been and continues to take place over the history of abortion in the United States.

I mention this only because Alito is focused on history and tradition, trotting out examples that go back not just to before Roe, or even before the 14th Amendment’s adoption, but to before American independence. The appeal to tradition is an informal fallacy, a logical flaw often used to undermine arguments with which one disagrees. “We’ve always done it this way,” however, or “this is how they viewed it” in some earlier time is not a useful defense of how we should view things now. And, as with much of his opinion, it allows him to avoid overtly asking and answering the key question: When does life begin?

He alludes to this question when he discusses “quickening,” or the idea that the fetus is considered a life at movement in the womb. This, as the Times points out, was the standard historically, one that is similar to viability argument that Roe sets up and that Casey v. Planned Parenthood refines. Quickening or viability, Alito writes, is important except when it is not. Killing a pre-quickening fetus could be judged a crime and often was — in the 1700s — but it is unclear whether that was because it took what they considered a life or whether it was because they destroyed property. In any case, should we in 2022 be held to standards that existed in the early 1700s, standards that have nothing to do with the lives we live today?

Alito is correct, I think, when he acknowledges “Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’” This is a central question, but it is one that can only be answered after one addresses when life begins.

I come down on the side of the living woman, the person who is actually in the world and must navigate it. She can choose to allow the fetus to develop into a life and then give birth, but she should not be required to do so. Her body, her call. We can debate the limits of this — when the fetus is developed enough to be more than a fetus — but I would argue that the ultimate decision has to be the woman’s.

That puts me at one pole in this debate. At the other, are Roman Catholics, many Orthodox Christians, and more conservative Christians, who argue that life starts at conception. This is not negotiable. For them, the balance is between protecting an unborn child — who for them is a child — and protecting the woman. Maybe. It’s why so many not only oppose abortion, but they oppose nearly all exceptions — for rape and incest, for instance.

Alito sides with this narrower cohort — you can see it in his choice of language and his repeating of the Mississippi law’s description of the fetus not just as “potential life,” which also implies a potential for no life, but as an “unborn human being.” His use of the phrase “interests of the woman who wants an abortion” indicates a narrow viewpoint. For Alito, this is not about a woman’s right to control her own body, not a balance between her real needs and the “potential life.” It is narrowly about her right to abort balanced against the destruction of an “unborn human being.”

This is the premise on which his entire opinion is based. He starts from the notion that the fetus is, in fact, an “unborn human” deserving of protection and not a “potential life” that may or may not come into being. In this way, he puts his thumb on the scale.

Roe and Casey attempted to strike a balance. As such, they were compromises. They acknowledged a right but limited it in various ways. Alito and his four fellow conservatives are about to undo that compromise and send the question back to the states, many of which have already moved to restrict access to abortion to such a degree that their laws represent outright bans. Women in these states — particularly those with the largest percentages of African American residents and the highest incidence of poverty — will not be equally protected under the law.

None of this should surprise us. The court, for most of its history, has been an exceedingly conservative institution. That we were lucky enough to enjoy a small period of court liberalism does not offset that the court has functioned as a obstacle on most questions regarding individual rights and liberties. The conservative assault on the court has been in progress for decades, and the current composition of the court is due in no small part to our inability to see this and understand what it might mean. We — and I include myself — have not listened very closely to the Right, not taken their plans very seriously, have not seen the direct connection between who we elect as president and who we send to Congress and who ends up on the bench and what that means for our nation’s laws. The court, too often, has been an afterthought, even as we have asked it to determine the fate of so many important issues.

Ruth Bader Ginsburg, while voting at various times to uphold Roe, understood this and saw clearly that the reliance on the court meant that we were at the mercy of its political swings. This draft is not some outlier, it is a direct strike from an emboldened conservative court majority that knows it will remain in force for the foreseeable future. It starts with Roe, but will not end there, and we have to acknowledge this.

The fight for abortion rights, women’s rights, all rights, has to reach beyond a judicial branch that has been remade in Donald Trump’s image. We can and should press reform — a larger Supreme Court, term limits (or age-caps) for judges, more direct accountability to elected officials — but we cannot leave it at that. Come June, when it seems likely that this draft will be issued as official opinion, the abortion question will go back to the legislative branch and the states. We have to elect a pro-choice Democratic Congress and make sure it is willing to wade into the difficult waters of this issue, that it stands firmly with women and codifies it in national law. And we have to do the same in every state — including those that are out pro-life. The women in those states deserve as much.

What we face now is no longer a question of jurisprudence, but one of politics and mobilization.