It used to be that who you were at birth defined who you were for the rest of your life: slave or owner, emperor or subject, aristocrat or serf, man or woman, black or white. But, over time, moral revolutions have chipped away at the idea that we simply inherit our identities.
Today, most people in the Western world recognise that choice lies at the core of selfhood. We can be born in poverty and still become presidents. Our moral progress is enshrined in rights that enable us to strive to be whoever we want to be -- or to live openly as who we truly are, with the same protections as everyone else. However, the leaked US Supreme Court draft majority opinion in Dobbs v. Jackson Women's Health Organization now threatens to take us back to the dark ages of biological determinism.
Written by Justice Samuel Alito, and confirmed to be authentic by Chief Justice John Roberts, the draft opinion would strike down Roe v Wade, the ruling that recognised a constitutional right to abortion. Four Republican-appointed justices -- Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett -- are understood to be voting with Justice Alito. The three Democrat-appointed justices -- Stephen Breyer, Sonia Sotomayor, and Elena Kagan -- are said to be at work on dissenting opinions. Justice Roberts's current position is unknown. Adding insult to injury, on May 11, the Women's Health Protection Act – an attempt to codify the right to abortion through legislation -- was defeated in the Senate.
Reversing Roe would allow the states to decide how to regulate abortion. At least 13 states are expected to ban the procedure immediately, with Louisiana discussing a bill that would even classify abortion as homicide. As such, the opinion would likely result in an explosion of unsafe and potentially life-threatening abortions. The moral implications are as bad as the legal and health consequences.
At a purely technical level, Justice Alito's draft decision is an affront not just to women's rights but to the rule of law. In describing Roe as "egregiously wrong from the start", he contravenes the established legal principle of stare decisis, according to which courts are bound by precedent.
Justice Alito's central argument appears to be that abortion is not mentioned in the US Constitution. But, of course, neither are contraception, interracial marriage, or LGBTQ rights. His opinion thus threatens to sweep away a broad array of hard-won rights. By describing Roe as not "objectively, deeply rooted in this Nation's history and tradition", he aims to erase the contributions of generations of American feminists who campaigned for women's reproductive rights. Millions of women who have based their life plans on 50 years of established jurisprudence now stand on a precipice of uncertainty.
Justice Alito's arguments seem forced, both in terms of a highly restrictive "originalist" interpretation of the Constitution and in terms of cultural norms. Gallup's polling shows that around half believe it should be legal under all circumstances.
What is Justice Alito really driving at? This is not about the so-called "right to life," a principle that legal conservatives defend only selectively -- abandoning it, for example, in the case of vaccine mandates or capital punishment. Rather, eliminating constitutional protections for abortion is about reinforcing the Napoleonic notion that women are "mere machines to make children".
Since sex has disproportionately different implications for women than it does for men, the effect of reversing Roe would be to place an unconscionable burden -- physically, financially, psychologically, and socially -- on only one of the two parties in a shared act. That constitutes discrimination even in the case of consensual sex, and it opens the door to grotesque miscarriages of justice in the absence of exceptions for rape and incest.
The twentieth-century sexual revolution wasn't about "free love"; it was about freedom. Women enjoy full agency for the first time in history, owing largely to the separation of sex from procreation resulting from access to effective contraception and safe abortion.
Accepting that women are more than just fertility machines not only stripped away old stigmas and stereotypes; it also served as a segue to a broader social revolution. Many groups have since pushed beyond the bounds of biological determinism. In the wake of women's emancipation came LGBTQ rights, disability rights, legal recognition of alternative family structures, and calls to recognise rights for "nonhuman persons".
Legal conservatives offer a lesson for their progressive counterparts: emotional appeals and constant vigilance can bring about radical change. To paraphrase Margaret Atwood's The Handmaid's Tale, if we were lulled to sleep by a formal legal safeguard of our rights, now we must wake up and defend our moral victories. ©2022 Project Syndicate
Antara Haldar is Associate Professor of Empirical Legal Studies at the University of Cambridge.
