All Hail Justice Coathanger
by Sherry F. Colb
Many observers have already said wise things about the emesis issuing forth from Samuel Alito (SA) in the leaked draft majority opinion in Dobbs v. Jackson Women's Health Organization that has exposed the Supreme Court as the illegitimate institution that it has now become. I want to take this opportunity to propose, as an initial observation, that SA wears his hypocrisy on his sleeve.
In one part of what reads like an application for the Federalist Society Hall of Fame, SA makes quick work of dismissing the idea that banning abortion (including for rape and incest victims) denies equality to women on the basis of sex. Before quoting his discussion of this idea, I will briefly make the argument that he so cavalierly dismisses.
The argument is that for the most part, women's role in reproduction is far more demanding, physically and psychologically, than men's. Specifically, men ejaculate and thereby complete their role. Women, by contrast, endure forty weeks of some combination of nausea and vomiting, difficulty sleeping, difficulty breathing, the risk of gestational diabetes, the risk of life-threatening pre-eclampsia, the potential need to experience bed rest (which is anything but restful), the most physically painful experiences at the end, including the risk of vaginal tearing and of more serious complications, followed by the production of milk that can sometimes cause very painful mammary gland blockage (if she misses a feeding or pumping) and risks of an abscess.
Criminally prohibiting abortion means that when men ejaculate inside women (which some number do without the consent of the women involved), the law launches women into an extraordinarily burdensome experience and thus creates an extremely unequal state of affairs. Only those with a vagina and a uterus face the enormous and sometimes life-threatening burdens and risks of pregnancy and birth. It is difficult to imagine a more sex-based "fuck you" than announcing that the government may lawfully force a woman (or a trans man or a nonbinary person) to go through all that pregnancy, labor, birth, and lactation involve.
SA disagrees and says the following: "It [the argument that prohibiting abortion discriminates against women] is squarely foreclosed by our precedents, which establish that a State's regulation of abortion is not a sex-based classification and is thus not subject to the 'heightened scrutiny' that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a 'mere pretext designed to effect an invidious discrimination against members of one sex or the other.'" For that bald assertion, SA cites Geduldig v. Aiello, a 1974 case in which the Court said that singling out pregnancy for insurance non-coverage in no way discriminates on the basis of sex because the class of non-pregnant people (who benefit under the challenged program) consists of both men and women. I found the decision quite absurd as a law student, and it has not aged well.
Just imagine an insurer that provides coverage for all cancer patients with the one exception of those patients suffering from testicular cancer. Under Geduldig, if applied with integrity, such a program would not constitute sex discrimination against men.
SA next cites another great decision by the Court, Bray v. Alexandria Women's Health Clinic, explaining that "[a]s the Court has stated, the 'goal of preventing abortion' does not constitute 'invidiously discriminatory animus against women." That case involved Operation Rescue protesters who blocked women from entering an abortion clinic. Here's how one book described typical "rescue" blockades: "The Operation Rescue men confront . . . clinic workers, and form a wall, shoulder-to-shoulder, often screaming 'dyke' or 'whore' to any woman who walks across." But SA confidently cites the Supreme Court's unsupported assertion that the anti-abortion "rescuers" plainly harbored no discriminatory animus.
So why do I say that SA is a hypocrite rather than just a misogynist? Because after asserting without any basis that forcing women to turn ejaculate plus an egg into an actual baby in no way discriminates against women, he tells us one of the very important reasons a state might have for inflicting forced pregnancy and birth on women:
He references amicus briefs that "note that some such supporters [of abortion rights] have been motivated by a desire to suppress the size of the African American population." (Just like some abortion protesters hate women?) But here's the money shot: "And it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black." See what he did there? He pointed out the disparate impact that the right to abortion allegedly has on Black fetuses (raising the question whether zygotes, embryos, and fetuses have a racial identity). He apparently believes that this disparate impact is something worthy of his readers' attention, and he implies that abortion therefore qualifies as discrimination against African Americans. Accordingly, SA believes that the rather astonishing disparate impact that bans on abortion will have on women on the basis of their sex barely merits a comment (beyond a citation of a moronic opinion and a myopic one), but the far less disproportionate impact of abortion (by Black women) on "black fetuses" somehow strikes him as highly significant. Emphasizing that he is talking only about disparate impact on "black fetuses" and not disparate treatment of them, he says that "[f]or our part, we do not question the motives of either those who have supported [or] those who have opposed laws restricting abortions." Intent matters only when it is women suffering the impact of forcing them to remain pregnant and to give birth against their will, but not when it is a fetus who "experiences" disparate impact.
I am going to go out on a limb here to propose that SA does not care at all about Black zygotes or their subjection to discrimination. After all, his jurisprudence shows no compassion for Black humans who have completed their fetal development and may wish to have protection against voter suppression. He instead views racial injustice as a vehicle for making reactionary points, including the notion that governments have no business enacting gun control laws and the idea that reproductive servitude is constitutionally unobjectionable.
To state this idea differently, Justice Alito is an unabashed troll. He is the guy who sat behind you in math and blew spit balls your way, and he has graduated to imposing his right-wing extremism on the entire country. To quote the words of SA quoting Justice Byron White, the Dobbs draft is an exercise in "raw judicial power."