A draft Supreme Court opinion, if it becomes final, would end the 50-year-old national right to abortion in the United States. Justice writer Sean Fine explains the reasoning for Justice Samuel Alito’s leaked first take on the majority opinion, and why he strongly disagrees with Canadian approaches to constitutional interpretation.
How big of a reversal of abortion rights would this opinion be, if upheld in a final ruling?
A complete investment. The Roe v Wade majority ruling of 1973 established that of a woman the right to privacy includes the right to choose an abortion, to the point of fetal viability, under the 14th Amendment to the United States Constitution. “In general, the idea of the due process clause of the 14th Amendment is that there are some rights that are so essential to being a free person that the government cannot take them away,” said Jill Hasday, Distinguished McKnight. University Professor and Centennial Professor of Law at the University of Minnesota Law School.
In 1992, in Planned Parenthood v. Casey, the court said the government cannot place an “undue burden” on the right to choose. Alito’s opinion said that abortion is a matter for legislators, not judges.
How did Judge Alito come to such a different conclusion than Roe and Casey?
The US approach is to look at the law and the history of the country to determine whether an aspect of life is a fundamental freedom worthy of protection under the 14th Amendment. But it all depends on the questions judges ask.
In Roe and Casey, the justices asked whether the court had linked marriage choices (such as interracial marriage) and contraceptive use to freedom. The answer was yes. They asked if an unwanted pregnancy could lead to unwanted children and a harrowing future. Judge Alito asks a more limited question. Was there a right to abortion in earlier times, like when the 14th Amendment was ratified in 1868?
“It is recalling a historical period in which women were denied the vote and, more generally, almost any legal right,” Professor Hasday said. “And he says that’s what the Constitution is embedding forever.”
Do Canadian judges use similar approaches?
“Courts define the content of a constitutional right based on its purpose, not its historical origins and traditional conceptions of it,” said Joel Bakan, who teaches at the University of British Columbia Allard School of Law.
University of Ottawa law professor Carissima Mathen said practices prior to the 1982 Bill of Rights and Freedoms “are generally not considered relevant to the scope of individual rights and freedoms. And there is a strong tradition in Canadian constitutional interpretation known as the ‘living tree’ or ‘progressive interpretation,’ which explicitly rejects the concept of rights frozen at a particular moment in time.
What does Alito say about abortion as an equality issue?
He completely rejects it. The 14th Amendment has an equal protection clause. Challenges to laws brought under this clause, for example by women or racial minorities, require judges to closely scrutinize government action. But the 1973 ruling in Roe v. Wade did not mention equality. Why? Because, Professor Hasday said, it was only two years before the court began applying the same protection to women.
The year after Roe, the court decided that discrimination against pregnant women was not a form of sex discrimination. (The Supreme Court of Canada issued a similar ruling in 1978, but it was reversed in 1989: “It is a basic biological fact that only women have the ability to become pregnant.”) In Casey, the US Supreme Court issue, connected to the economic and social participation of women in society, while continuing to place the right to abortion in the due process clause. Judge Alito says state regulation of abortion “is not a classification based on sex” based on precedent.
So on what basis could the new restrictions on abortion be challenged?
That could only happen, Judge Alito says, if a state lacked a “rational basis” for thinking that the restrictions would serve legitimate state interests, such as the protection of fetuses. That’s not a high bar; in fact, it is the lowest standard of justification that can be asked of a state, Professor Mathen said. “Unless the law is arbitrary or in bad faith, it will be approved on a rational basis.”
In Canada, Professor Bakan said, any restrictions on abortion would be a limit to the Charter’s right to security of the person, and would have to meet a much stricter standard. It would have to be in accordance with the principles of fundamental justice and minimally undermine the right, and its benefits would have to outweigh its harms.
What does Alito’s approach mean, in practice, for US abortion rights?
It would no longer be a constitutional issue. Judge Alito would return authority over abortion to “the people and their elected representatives.” Twenty-six states asked the court to overturn Roe and Casey. More than a dozen states have so-called trigger laws — restrictive abortion laws that will take effect if Roe falls. America would become a mosaic of abortion laws.
What are the implications for women who leave their state in search of an abortion?
A proposed law in Missouri would make it illegal to help anyone get an abortion in another state, said Aziz Huq, the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago. Enforcement would be placed in the hands of private citizens, who could sue for damages.
Other states are also proposing to criminalize women seeking an abortion out of state, he added, drawing an analogy with fugitive slave laws: Blacks who crossed state lines were supposed to be fleeing slavery and vulnerable to private violence. or state. “You are seeing this effort on the part of Red [Republican] States to treat women’s bodies as if they were their jurisdiction, as if they were sovereign over women’s bodies.”
What are the implications of Alito’s frozen-in-time approach for other rights?
Judge Alito differentiates abortion from same-sex marriage (on which he dissented in 2015), contraception, and interracial marriage: only abortion raises a “critical moral issue” involving an “unborn human being.” (The term “unborn human being” used in the Mississippi law is being challenged in the Supreme Court. That law prohibits abortions after 15 weeks of pregnancy.)
Justifying abortion through broad calls for autonomy could be a license, he says, to declare fundamental rights to illicit drug use or prostitution. This statement is “him indicating that Obergefell is illegitimate,” Professor Hasday said, referring to the 2015 same-sex marriage ruling.
Other privacy rights could fall, said Richard Albert, the William Stamps Farish Professor of Law at the University of Texas Law School at Austin: “It’s all on the table.” In Canada, the courts have granted constitutional protection to sex work and illicit drug use.
So, has the Supreme Court of Canada declared that abortion is a woman’s right?
When the court struck down the criminal law on abortion in 1988 in the Morgentaler case, it did not declare abortion a right and did not prevent Parliament from imposing restrictions. A later law criminalizing abortion died in a tie vote in the Senate, and abortion has been treated in law as a medical matter ever since; it has become a no-go zone for the main political parties.
Restrictions on abortion would clash with protections of personal security, liberty and equality, Professor Mathen said. She believes that the right to reproductive autonomy would tend to be viewed by Canadian courts in the same way as other deeply personal decisions cited in Roe and Casey.
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