Justice Alito’s Leaked Draft Decision and Women’s Rights as Citizens

Rebecca DeWolf | May 18, 2022


Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson’s Women’s Health Organization suggests that the Supreme Court is set to fully overturn the current judicial precedent established in Roe and Planned Parenthood v. Casey (1992). That precedent has upheld a woman’s right to access abortion services until about 24 weeks of gestation.

For reproductive rights activists, access to abortion is a vital component of the right to liberty promised by the Fourteenth Amendment’s Due Process Clause. But Justice Alito ardently disagrees with that belief. From Alito’s viewpoint, because abortion is not explicitly mentioned in the Fourteenth Amendment, the right to abortion must be “deeply rooted in the [country’s] history and traditions” for it to be a fundamental right that is protected by the Constitution. Alito concludes that as the right to abortion is not profoundly embedded in the country’s legal history, the Court has a duty to set aside Roe and Casey to return the issue of abortion back to the states and the people’s elected representatives.

A central piece of Alito’s assessment is that in 1868 legal and political authorities did not envision access to abortion as a fundamental right when they ratified the Fourteenth Amendment. Around the time of the Fourteenth Amendment’s passage, state legislatures had started to move away from an earlier legal outlook that permitted abortion before pregnant persons felt the fetus “quicken” (or move) inside of their body. By the late nineteenth century, legislators had increasingly abandoned the quickening doctrine to pass measures that criminalized abortion in all stages of pregnancy. However, at the time of the Fourteenth Amendment’s passage, the country’s leaders also did not even envision women as possessing the capacity to hold the full rights of U.S. citizenship.

As I describe in my book, Gendered Citizenship, long after the passage of the Reconstruction Amendments, the country’s leaders kept intact the principles underlying the old law of domestic relations that had given men authority over women. Although the ratification of the Nineteenth Amendment in 1920 removed sex as a permissible barrier to the right to vote, restrictions on women’s rights to hold public office, serve on juries, have an independent nationality status, and work in certain occupations remained in the country’s legal system for decades. There was also a multitude of state-level laws that continued to privilege husbands and fathers over wives and daughters in relation to property, earnings, contracting, inheritance, and guardianship rights up until the 1970s when the Supreme Court finally began a major reinterpretation of the Fourteenth Amendment to include women’s rights as citizens.

Alito’s attempt to restore an earlier understanding of the Fourteenth Amendment’s implications has caused advocates of the still uncertified Equal Rights Amendment (ERA) to push their elected representatives to secure the amendment’s full ratification. For ERA advocates, the certification of the ERA, with its promise of complete constitutional sexual equality, will provide the robust guarantee that is needed to prevent the country from falling back onto a legal bedrock that had denied women the status of rights-bearing citizenship.

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