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Jamelle Bouie

The Movement That Put Alito on the Court Isn’t Finished

Credit...Damon Winter/The New York Times

Opinion Columnist

The right-wing attack on abortion will not end with abortion.

Defenders of Justice Samuel Alito’s draft opinion that would overrule Roe v. Wade say otherwise. They say that because Alito explicitly states that his opinion “does not undermine” other cases that rely on a right to privacy, like Obergefell v. Hodges, which established a right to same-sex marriage, then it’s fair to say that it doesn’t.

I think this is wrong — not just because of the logic of Alito’s opinion, but because of the logic of the political movement that ultimately produced his ruling.

The central argument in Justice Alito’s draft opinion is that the 14th Amendment protects only those unenumerated rights (meaning rights not stated explicitly in the text of the Constitution) that are “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty” (Alito is referring here to the court’s decision in Washington v. Glucksberg). It is mainly for this reason that the right to an abortion — which, in Alito’s telling, was not recognized in the United States before the 20th century — lies outside the scope of constitutional protection.

To establish this, Alito looks to the law as it existed in 1868, when the 14th Amendment took effect. Roe roots the right to an abortion in its due process clause, but Alito finds statutes “making abortion a crime” in 27 of what were then the nation’s 37 states. Thus, he concludes, lawmakers couldn’t have had abortion in mind when drafting, passing and ratifying the amendment.

Scholars disagree. Weighing in last year on Mississippi’s argument in the case in question, Dobbs v. Jackson Women’s Health Organization, Aaron Tang, a law professor at the University of California, Davis, disputed the claim that most states had banned abortion by the 1860s. At the time of the founding, he writes, “every state respected the right to abortion before the quickening, or the first noticeable fetal movement that often occurs at 15 or 16 weeks in pregnancy.” By the time the 14th Amendment was ratified, he continues, “21 of 37 states continued to recognize the very pre-quickening abortion right that was universally embraced at the founding.”

Coming from a somewhat different angle is Peggy Cooper Davis, a law professor at N.Y.U., who says that reproductive rights are an integral part of the 14th Amendment on account of its origins in the Civil War and the abolition of slavery. The lawmakers who wrote the amendment, she writes in The Washington Post, “did so in direct response to slavery’s heartless separations of families and to enslavers’ brutal practices of human breeding.”

Slavery in the United States — and especially in the form it took after 1808 and the end of official American involvement in the trans-Atlantic slave trade — rested on tyrannical control of reproduction among enslaved people. In parts of the slaveholding South, selling children was bigger business than selling cotton, and many slaveholders took keen interest in the reproductive capacity of those they enslaved, breeding children both for labor and for sale on the market. This was no secret, and the men who wrote the 13th and 14th Amendments understood that, as Davis writes, “slavery had denied enslaved people familial rights and control over their reproductive choices.”

Alito’s incomplete and distorted history aside, what we see when we look at the logic of his draft ruling is an argument that could sweep more than just abortion rights out of the circle of constitutional protection. Neither the right to same-sex marriage nor the right to sexual autonomy (Lawrence v. Texas) can be said to be “deeply rooted in this nation’s history and tradition.”

Nor for that matter can you say the same of the right to privacy (Griswold v. Connecticut) or racial integration (Brown v. Board of Education). Indeed, under the logic of Alito’s opinion, unless you can prove that some aspect of your freedom was recognized in the deep reaches of American history, it is subject to state coercion.

There is a paragraph in which Alito denies that the logic of his opinion applies to these other rights. “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” he writes. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

But Alito neither explains nor tries to substantiate this point. It’s an aside, a throwaway line — a “to be sure” meant to cover an obvious weak point. And given his hostility to the Obergefell ruling (he stated in his dissent that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are “deeply rooted in the nation’s history and tradition”), there’s no reason to take him at his word.

Which brings us to the logic of the political movement that brought us to this point. Those of us outside the conservative movement and the religious right tend to think of them in terms of what they’re against, but it is helpful here to think in terms of what they want. Judging from their priorities, as well as their leaders and intellectuals, these movements want a hierarchical society of traditional morality and patriarchal family structure, where male-led households are disciplined by an unrestrained free market. A national ban on abortion — which, if Republican lawmakers are any indication, is where much of the movement will go after the court overturns Roe — is part and parcel of that vision.

Justice Alito may sincerely believe that his draft opinion has no bearing on same-sex marriage, sexual autonomy or contraception. But to the movement that placed him and his fellow travelers on the Supreme Court, those freedoms also undermine the society it hopes to build. They, like legal abortion, allow for the social equality of women and sexual minorities. They, like legal abortion, must also be on the chopping block.

The Supreme Court may never move against same-sex marriage, sexual autonomy or contraception, but states led by ultraconservative Republican lawmakers just might. Last week, a leading Republican in the Idaho Legislature said he would consider hearings on legislation banning morning-after pills. And on Sunday, Tate Reeves, the governor of Mississippi, refused to rule out the possibility that his state would outlaw certain forms of contraception if Roe v. Wade is overturned. States have already begun to crack down on access to abortion pills, and lawmakers in several states have been talking about legislation that would restrict residents from traveling across state lines to obtain an abortion. There is every reason to think that these laws and proposals are only the beginning.

No one wages a generational battle to reshape American society for the sake of a partial victory. And for the reactionaries at the helm of the conservative movement, the end of Roe v. Wade is exactly that — a partial victory.

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Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie

A version of this article appears in print on  , Section A, Page 18 of the New York edition with the headline: The Movement That Put Alito on the Court Isn’t Finished. Order Reprints | Today’s Paper | Subscribe

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