The Most Dangerous Branch – Justice Alito’s un-American Screed

The Abortion Debate

It is a sad commentary that courts in Colombia, Argentina, and Mexico have ruled to decriminalize abortion while the American Ayatollahs of the US Supreme Court yank us backward with their medieval thinking

By Anil Madan

In Federalist 78, Alexander Hamilton spoke to the division of power among the different departments or branches established by the new Constitution of the United States. In describing the judiciary as the least dangerous department or branch, he wrote: “Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse.”

Abortion. Pic – National Catholic Reporter

Little did he know that the Supreme Court would one day strive to control women’s fallopian tubes and the uterus and thus become the most dangerous branch of government as its right-wing judges pander to the preferences of the Republican senators who put them there.

Justice Alito’s draft opinion (circulated among US Supreme Court justices, andwhich suggested that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion in the US) is a tour de force of shoddy reasoning, willful evasion, and reflects a hell-bent determination to do something that is un-American to the core: declare that a fundamental right can be legislated away by a state. It is an invitation for a minority view of morality to be imposed on those who do not share such a view. It is a march back to the 12th Century or before.

Before we explore why Justice Alito’s pronouncements do not hold water, let us go back and understand what Roe v. Wade really decided and how the Planned Parenthood v. Casey decision clarified the Roe’s essential holding. Then we can see why Justice Alito either misunderstands or misstates these holdings and why his decision tramples on fundamental values. In fact, we will see that for a man who professes to be a strict constructionist, applying only the language of the Constitution, he in fact ignores the plain words of that document.

The Core Ruling of Roe v. Wade

In Roe v. Wade, the court acknowledged that the Constitution does not explicitly mention any right of privacy. Nevertheless, in decisions going back at least to 1891, the Supreme Court has recognized a right to privacy. In the Union Pacific R. Co. v. Botsford case, the court declared: “No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.” That was in 1891. Note that the court adverted to the common law, meaning that this recognition was of long-standing duration and indeed, before the first settlers arrived to colonize America.

In 1969, four years before Roe was decided, the Supreme Court observed in Stanley v. Georgia, “Also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” Justice Blackmun writing for the court, gave other examples and noted that some courts had found the right to privacy inheres in the due process clause of the fourteenth amendment to the US Constitution. In the 1923 case Meyer v. Nebraska, the court expressed it thus: “Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

I note that the freedom to marry, establish a home, and to bring up children cannot be freedoms unless the concept includes the right NOT to marry, NOT to establish a (marital) home, and NOT to have children.

Importantly, in the Meyer case, the court stated: “The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.”

With this historical recognition of the right, the Supreme Court in Roe ruled that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

It is important to remember that the opinion in Roe explicitly states that the woman’s right to decide the abortion question is founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, but also acknowledges, without criticizing the ruling, that the lower court found the right to be within those reserved by the Ninth Amendment to the people. I will return to the Ninth Amendment later in this review.

The rest of the court’s opinion in Roe dealt with the recognition that the right to terminate a pregnancy is not unfettered through the entire period of gestation but must bear some relationship to viability of the fetus and that the state has a legitimate interest in preserving the life of both the mother and the unborn child. As a result, the court seeing no bright line where viability is conclusive, established markers based on the three trimesters of pregnancy. To be sure, there is no constitutional imperative to these lines, but they do deal with the constitutional imperative of securing fundamental rights of the mother, while also preserving the legitimate interest of the state in reasonable regulation through legislation.

Roe v. Wade Ratified

In the Planned Parenthood v. Casey decision, the Supreme Court reaffirmed the essential holding of Roe. And the court took pains to explain that the holding of Roe has three parts. First is the right of the woman to have an abortion before viability without undue interference from the state. Second, it confirms the power of the state to restrict abortions after fetal viability so long as the law does not reach so far as to restrict them when the woman’s life or health is in danger. Third, the state has a legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.The court did not see these principles as contradicting one another.

Significantly, the court in Casey reiterated that this constitutional right derives from the Fourteenth Amendment which declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The concept of “liberty” is at issue and the Due Process clause has been interpreted as protecting all fundamental rights comprised within the term “liberty.” These guarantees of due process are longstanding, having their roots in Magna Carta and, in the United States, they have become bulwarks against arbitrary legislation regardless of the procedures used to adopt such laws.

The Constitution does not mention the word “marriage”. Nevertheless, the substantive due process rights have led to protection of both interracial and same-sex marriage. Similar protections have been extended to rights of procreation, contraception, family relationships, child rearing, and education. None of these is explicitly mentioned in the Constitution.

The Casey case clarified that the right to liberty is not a series of isolated points that are limited to those rights mentioned in the Bill of Rights, i.e., the taking of property, freedom of speech, press, and religion, the right to keep and bear arms, or freedom from unreasonable searches and seizures, but rather it is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.

Where there are differences of opinion based on morality, here’s what the court in Casey said: “Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health or is the result of rape or incest.”

And the Casey court explained that ultimately, “It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty.”

To make it clear, the state may NOT intrude upon a protected liberty by endorsing one moral choice over another.

The Ninth Amendment

The Ninth Amendment to the Constitution is strikingly straightforward: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

The meaning of this language is simple and straightforward. It means simply that the fact that, for example, the right to free speech is listed as a protected right, does not mean that another right, for example, the right to privacy or liberty, may be denied or disparaged.

This may be obvious, but it is worth noting that the framers of the Constitution were expressly stating that the people have more rights than those specifically mentioned in the Constitution.

The Right to Liberty

Is there a right to liberty? And, if so, is it one of long standing and recognition?

The answer is as strikingly straightforward as is the Ninth Amendment. The Declaration of Independence, which predated the Constitution by eleven years, declared: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The document that set out the basis on which this nation was conceived declared liberty not only a right but an unalienable right. It is worth noting that in his Gettysburg Address, President Lincoln spoke of a nation “conceived in liberty.”

The significance of the Declaration of Independence was not lost on the framers of the Constitution. The Preamble to the Constitution states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very purpose of the Constitution is stated to be to secure the Blessings of Liberty.

There is no question that Liberty is a right protected by the Constitution.

Justice Alito’s Opinion

With that background in what the Supreme Court had decided, let us turn to Alito’s draft opinion.

At the outset, Alito falsely states that the opinion of the justices who upheld Roe did not endorse Roe’s reasoning. As we have seen, this is emphatically not so. Nor did any of the justices have reservations about whether the Constitution protects a right to abortion as Alito states. In fact, the statement of the court on this aspect of the matter bears our attention: “Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”

Alito’s next attack was on the rationale of Roe as confirmed and ratified by Casey. He declared that the Constitution makes no reference to abortion and “no such right is implicitly protected by any constitutional provision, including … the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee the rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition.”
There are three responses to this nonsensical statement. First, no right could more deeply rooted in American history and tradition than the right to liberty as we have seen. Second, since Alito claims to be a strict constructionist who adheres to the language of the Constitution, why does the Ninth Amendment not prevent him from denying a right based on liberty? Third, Alito cites the case of Washington v. Glucksberg, but that case does not stand for the proposition that he attributes to it. In that case, the court held that a law preventing assisted suicide was not unconstitutional because assisting suicide had never been deemed a right and neither had any right to commit suicide ever been recognized.

Ultimately, Alito’s opinion depends on a view of morality that is as un-American as any ever stated by a court. He begins his opinion by stating: “Abortion presents a profound moral issue on which Americans’ hold sharply conflicting views.” His opinion ends with this: “‘We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions.” In between, he wrote: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”Of course, this is nonsense. As he already stated, the Constitution does not mention abortion, let alone stating that the issue should be decided by the people’s elected representatives.

Nor does Alito ever explain why the majority, or a minority for that matter, is entitled to legislate its view of morality in curbing the rights of individuals who disagree with the views of morality adopted by their fellow citizens or elected representatives.

A Profoundly un-American Decision

Justice Alito’s view of the power of the government to dictate what free individuals are allowed to do and what they may not do in pursuing their own happiness is at odds with the Declaration of Independence and the Preamble to the Constitution. It is also at variance with the Fourteenth Amendment and the Ninth Amendment.

Nor is what he writes sound constitutional interpretation. The Constitution expressly declares that rights not enumerated shall not be denied or abridged. The right to liberty is a fundamental right. Yet, Alito suggests that a legislature in one state elected by Republicans may deny such a right whereas a legislature elected by Democrats in another state may grant and enlarge such a right. Where is equality in that concept of government?

Alito may have profound religious objections to abortion. The simple answer is, if you are opposed to abortion, don’t have one. There is nothing in our Constitution that permits the followers of one religion to impose their views of morality on others.

It is a sad commentary that courts in Colombia, Argentina, and Mexico have ruled to decriminalize abortion while the American Ayatollahs of the US Supreme Court yank us backward with their medieval thinking.


Mauritius Times ePaper Friday 20 May 2022

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