Alito’s Disingenuous Originalism in Dobbs
In his written opinion in Dobbs (full text here), Justice Alito’s pseudo-legal “scholarship” is outrageous. He first claims the absence of the term ‘abortion’ in the Constitution. He then conducts a mock search for references to legal abortion in the history and traditions of the United States. Of course, he finds none.
But the “venerable Justice” conveniently ignores the disquieting fact that women couldn’t vote until 1920.
At the time of Roe in 1973, women had suffrage a mere 53 years of 200.
How would there be a history or tradition of legal abortion when half of the population — the half affected by pregnancy — had no vote? How would laws making abortion safe and legal have come about?
His condescending review of 16th, 17th, and 18th century “common law” authorities such as Blackstone, followed by his “historical precedent” review of 18th and 19th-century abortion law in the United States, does nothing more than whitewash (literally) and legitimize a patriarchal system that treated women as property until 1920.
Is this acceptable? Is this scrabbling backward in history to find something non-existent because of the very issue of women’s rights, really how we want to be governed? Especially women. Do you?
It’s sham parading as genuine scholarship or well-grounded legal or analytical theory. It is hypocrisy in print.
This is why originalism is so wrong. It ignores the historical fact that women, POC, and other classes were politically voiceless at the time of the founding. It’s true. The Constitution does not mention the word “abortion,” — nor does it mention the word “woman.”
If an originalist reads the Constitution and doesn’t see the word woman, do women cease to exist?
Women were voiceless, politically powerless, and not co-equal citizens from 1789 to 1920.
Anyone, even a Justice, supposedly seeking historical or traditional evidence regarding issues of specific interest to women (such as abortion) that women themselves could not have shaped, nor participated in, lacking political standing, is being blatantly disingenuous concerning history.
Unsurprisingly, he looked for a historical precedent for an issue concerning the rights a woman has to her body and life and found nothing. Because ladies, you had no rights and no voice at all until 1920.
Finally, to conclude the disingenuous argument, with the stroke of a pen, Alito and his co-signatories overturn Roe, and wipe out 50 years of precedent, assuring the next time the issue comes up, the Court won’t be able to rely on its past rulings in either Roe or Casey.
This act is legitimacy suicide for the Court.
Ladies welcome back to the 18th century, courtesy of your friendly Conservative Supremes.