My own way of keeping track of a Supreme Court term is to log each of the term’s decisions on a chart labeled by category: criminal law, administrative law, speech, federalism and so on. For this past term, one of my charts was of course labeled “abortion,” and naturally that’s where I recorded Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade.
But the other day, going over my charts before filing them away to prepare for the next term, a realization struck me. I had put Dobbs in the wrong place. Along with the decision about the praying football coach and the one requiring Maine to subsidize parochial school tuition, Dobbs belongs under “religion.”
That assertion invites pushback, I’m well aware. But step back from today’s artificial arguments about originalism and history, and consider the powerful social movement that led consecutive Republican presidents to appoint anti-abortion justices and that then drove the abortion issue through the Supreme Court’s open door.
Does anyone really think it was motivated by disapproval of the court’s reliance in Roe v. Wade on substantive due process, an interpretation of the 14th Amendment that accords meaning to the word “liberty” in the Due Process Clause? Is there anyone who believes that if only the Constitution had included the word “abortion,” the anti-abortion movement would have failed to gain political traction? (Although the Dobbs majority treated the absence of the A-word in the Constitution as nearly fatal to Roe all by itself, it is worth observing that the Constitution’s 7,600 words, including its 27 amendments, contain neither the word “fetus” nor “unborn.”)
No one really buys the argument that what was “egregiously wrong” with Roe v. Wade, to quote the Dobbs majority, was the court’s failure to check the right analytic boxes. It was not constitutional analysis but religious doctrine that drove the opposition to Roe. And it was the court’s unacknowledged embrace of religious doctrine that has turned American women into desperate refugees fleeing their home states in pursuit of reproductive health care that less than a month ago was theirs by right.
To be sure, the Supreme Court has not outlawed abortion. Justice Samuel Alito left that dirty work to the states: Who will rid me of this bothersome right to abortion? But during the nearly two months between the leak of his Dobbs draft on May 2 and the release of the official opinion on June 24, it became painfully obvious to all that if Roe fell, abortion would soon be illegal or all but inaccessible in about half the states. That was the point, after all.
Not only did that prospect make no difference to the Dobbs majority — the official opinion was essentially unchanged from the leaked draft except for added sections that responded to, and distorted, the dissenting opinions — but Justice Alito actually had the gall to write that “we do not pretend to know how our political system or society will respond to today’s decision.” Polls conducted before the opinion’s release showing that upward of two-thirds of Americans wanted to retain a right to abortion offered a hint and were perhaps what led to Justice Alito’s self-righteous declaration: “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
Justice Alito took pains to present the majority’s conclusion as the product of pure legal reasoning engaged in by judges standing majestically above the fray of Americans’ “sharply conflicting views” on the “profound moral issue” of abortion, as he put it in the opinion’s first paragraph. And yet that very framing, the assumption that the moral gravity of abortion is singular and self-evident, gives away more than members of the majority, all five of whom were raised in the Catholic church, may have intended.
A recent essay in my local newspaper, The Berkshire Eagle, by a Congregational minister, John Nelson, was a powerful reminder that in speaking from one particular religious tradition, the court ignored other vital streams of religious thought.
“Samuel Alito is as free as any person to hold forth on morals and politics,” Pastor Nelson wrote, “but his opening salvo is backed up with no reflection on the sources, claims or nuances of morality, leaving the impression that the decision was developed through moral bias rather than moral reasoning.” Describing his own response to the decision as one of “fury,” the pastor said that the justices in their “concern for the lives of fetuses” overlooked the “lived experience” of women. “To show no regard for a lived experience is immoral,” he wrote.
Indeed, the fetus is the indisputable star of the Dobbs opinion. That is not necessarily obvious at first reading: The opinion’s 79 pages are larded with lengthy and, according to knowledgeable historians, highly partial and substantially irrelevant accounts of the history of abortion’s criminalization. In all those pages, there is surprisingly little actual law. And women, as I have observed before, are all but missing. It is in paragraphs scattered throughout the opinion that the fetus shines.
“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” Justice Alito wrote. “They are therefore inapposite.” Further on, he wrote: “The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a state’s interest in protecting prenatal life.”
This was a strange criticism of the dissenting opinion, signed jointly by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. They argued vigorously for retaining the 1992 Casey decision, which in fact, in a departure from Roe, declared that the state’s interest in fetal life was present from the moment of conception. Casey authorized the states to impose waiting periods and “informed consent” requirements that the court in the years following Roe v. Wade had deemed unconstitutional.
Justice Alito knows the Casey decision very well. As a federal appeals court judge, he had been a member of the panel that upheld most of Pennsylvania’s Abortion Control Act in the case that became Casey. Then-Judge Alito, alone on the panel, wanted to uphold a provision of the state law that required a married woman to inform her husband of her plan to get an abortion. In affirming the appeals court’s decision, the Supreme Court in Casey emphasized in one of the opinion’s most vivid passages the unconstitutional burden that the spousal notice requirement placed on women: “We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.” Perhaps that aspect of the Casey decision still rankled. In any event, Justice Alito’s attack on his dissenting colleagues for ignoring the state’s interest in fetal life was seriously misguided.
Of course, from his point of view, Casey didn’t go far enough because the weight the court gave to fetal life was well below 100 percent. The Casey decision was five days shy of 30 years old when the court overturned it, along with Roe v. Wade, on June 24. Given that this was their goal from the start, the justices in the Dobbs majority really had only one job: to explain why. They didn’t, and given the remaining norms of a secular society, they couldn’t.
There is another norm, too, one that has for too long restrained the rest of us from calling out the pervasive role that religion is playing on today’s Supreme Court. In recognition that it is now well past time to challenge that norm, I’ll take my own modest step and relabel Dobbs for the religion case that it is, since nothing else explains it.
Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The New York Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.” This article originally appeared in The New York Times.
