The uproar which followed the publication of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization delighted those who oppose abortion and horrified proponents of abortion rights. Much of the consternation over this opinion, if it prevails when the Supreme Court finally releases its final version, has centered on its far-reaching medical, social and political implications, including its disregard for widespread support for human rights. existing abortion and no doubt even its hostility. to democracy itself.
Yet this focus, while understandable, has mostly overlooked the three central tenets of Justice Samuel Alito’s opinion: his adherence to the judicial philosophy of constitutional originalism, his heavy reliance on history, and the role of religion. . After all, if Alito’s theory and story are sound, critics would have a much harder time dismissing it out of hand because they didn’t like the outcome.
Constitutional originalism says that judges should interpret the Constitution based on the document’s original intent or “fixed” meaning, filtering out contemporary values and preferences. As Judge Antonin Scalia said, judges should “start with the text, and give this text the meaning it had when it was adopted by the people”. Constitutional interpretation according to this view should avoid contemporary societal values or other similar considerations.
But the problems of originalism are numerous. The Constitution has been the product of many hands and is often vague as to its meaning. It often raises more questions than it answers; the drafters themselves disagreed not only on the meaning of the document, but on how strictly to adhere to its provisions. Some of the editors changed their minds on important issues (chief among them was James Madison). As one analysis has noted, “academics disagree on the original meaning of almost every important constitutional provision”. Moreover, the document under which we were governed could not have survived if it had not been adapted to modern society and to conditions which could not have been anticipated in the 18th century.
The initial version of originalism, labeled “Originalism 1.0” by Jonathan Gienapp, quickly gave way to a new version, which Gienapp dubbed “Originalism 2.0”. This second version emerged because of the beating the Originalists took at the hands of historians who accurately and effectively noted that the Originalists were, frankly, bad historians who seemed more interested in hiding their ends-oriented jurisprudence in a historical appearance ill-suited only to getting the story right, as best that can be determined. The term for it, “law firm history,” sums up lawyers’ often clumsy handling of history.
Originalism 2.0 attempted to dodge criticism by shifting its paradigm to “public meaning” or “how the words of the document would have been understood by a competent speaker of the language when the Constitution was enacted”. According to their account, this meant that the historical evidence was no longer relevant to their analysis. They simply needed to study the use of words in the particular legal context, which was presented as a rather narrow methodological exercise, not as “making history”. Except of course it was and still is. Moreover, all of this assumes that “the words used by the writers had well-established meanings”, which they did not.
With all of this, you don’t have to be an originalist to agree that the past matters, not just to understand how we got to the present, but because it can bring important perspective to understanding issues and challenges. contemporaries. Yet, in the real world, we live in the present, not the past.
Apart from this, in the case of Dobbs opinion, Judge Alito manages to get the story wrong. Alito says in the decision that “the right to abortion is not deeply rooted in the history and traditions of the nation” and that states have operated under “an unbroken tradition of banning abortion under penalty of penal sanctions” from its inception until 1973. Roe vs. Wade decision legalizing abortion. However, this is simply untrue. Alito himself notes in the decision that pre-rapid abortions (those that occur before fetal movement can be detected, around the middle of pregnancy) were not criminalized in early American history. . He then claims that by the time the essential Fourteenth Amendment, added in 1868, was passed, 28 of 37 states had criminalized pre-acceleration abortions. Yet, as former Supreme Court clerk Aaron Tang points out, this is false. In fact, at most 16 of 37 states had criminalized pre-acceleration abortions by this point. Prior to this time, from the colonial period to the early 1800s, pre-acceleration abortions were unregulated, quite common, and abortion services were even publicly advertised. Today, more than 95% of abortions occur before the sixteenth week of pregnancy. In short, historical practices primarily support contemporary abortion standards, not those proposed by Alito in Dobbs.
Finally, most proponents of abortion rights agree that the key decision is complicated, difficult and has a moral dimension. But the idea that abortion at any stage is unacceptably immoral and wrong stems from religious beliefs. As Caroline Mala Corbin wrote, “The view that an embryo or a fetus is a human being and that abortion is murder is ultimately a religious view.” However, there is no religious consensus on this subject. It is well known that the Catholic Church considers all abortions a mortal sin, although this doctrine only dates from 1869, with contemporary fundamentalist Christian sects also opposing it. But among the religions that allow abortion in at least some or most circumstances are the Episcopal Church, Evangelical Lutherans, most Jewish sects (Orthodox Jewry is divided), Presbyterians, Unitarian Universalists , the United Church of Christ and the United Church. Methodist Church. Non-believers largely support abortion rights. Moral considerations shape the law, but the United States is not a theocracy, and such an important political decision as that relating to abortion cannot be based solely on the teachings of certain religions in a nation governed by a secular government.
Judge Alito wrote in Dobbs this Roe vs. Wade was “grossly wrong from the start”. But this harsh conclusion applies more justly to the draft verdict of the good judge.