Rational Basis Scrutiny?

by Sherry F. Colb

In his lengthy draft opinion overruling Roe v. Wade and Planned Parenthood v. Casey, Justice Samuel Alito (SA) does a number of things that add insult to injury. I have accordingly criticized SA's opinion here, here, here, and here, rather than just saying "Alito is a misogynist creep who turned back the clock a half century" and calling it a day. In this post, I will focus on the slap in women's faces that SA achieves by ruling that prohibitions against abortion trigger "rational basis" scrutiny.

Rational Basis

The first thing to note is that every law, however innocuous, must survive rational basis scrutiny if challenged under the Fourteenth Amendment Due Process Clause (as well as the Equal Protection Clause). A law, for instance, that requires drivers to signal before a lane change would, if challenged, have to undergo rational basis scrutiny (RBS). RBS, in turn, demands that the law at issue serve some legitimate purpose. Many have characterized RBS as toothless because only a ridiculous law that does not, even hypothetically, promote a legitimate objective fails RBS. Strict scrutiny, by contrast, demands that the actual purpose of a law (not just a hypothetical goal) promotes a compelling governmental interest and does so in a way that is narrowly tailored to the compelling interest and therefore neither over-inclusive nor under-inclusive with respect to that purpose. Limits directed at the freedom of speech and the right to marry must survive strict scrutiny, which most laws fail to satisfy.

Forced Pregnancy and Rational Basis

By subjecting a law banning abortion to rational basis scrutiny, SA declared that the liberty against forced pregnancy and birth is not an important liberty that requires any serious arguments justifying the law. A law forcing women to remain pregnant against their will, then, is for SA no different from a law requiring people to stop at a stop sign or a red light. It interferes with personal liberty in a minor way that people barely notice and therefore requires little in the way of justification. However, even a woman who would never have an abortion because of her religious faith would likely take issue with the idea that pregnancy, let alone forced pregnancy, is a mere trivial imposition on liberty, comparable to having to obey a yield sign on the road.

The notion that 40 weeks of having one's body systems hijacked to build a baby out of a fertilized egg cell is a trivial imposition on liberty is deeply offensive. Yet it fits with SA's failure to devote any of his opinion to a discussion of what women lose in being forced to remain pregnant and then to labor for hours and hours of intense pain.

How Else Could He Have Ruled?

Well, putting aside the possibility of upholding Roe and Casey, Alito could have subjected the law at issue to strict or otherwise heightened scrutiny. He could have said that because the right against forced pregnancy and birth is fundamental--extremely important in the life of a woman--any law burdening that right would have to survive strict scrutiny, meaning that it would have to promote a compelling governmental interest and do so in a narrowly tailored way. Apply strict scrutiny would have given SA the opportunity to say what he plainly believes--that the government has a compelling interest in promoting the continuing life of the zygote or embryo, an interest that overcomes the liberty of the woman, trans man, or nonbinary person in remaining free from a forced pregnancy and birth. Though such a decision would still have been wrong, it would have been considerably less wrong than what SA actually did by applying rational basis scrutiny.

Complete Disconnection from the Experience of Pregnancy

SA made a choice, however, not to show any respect for the tremendous hardship and work involved in carrying a pregnancy to term and giving birth, particularly when it is against the woman's will. He said nothing about the anti-forced-pregnancy side of the case other than offering a throw-away line about how some people think that without abortion, women cannot control their bodies. In a 67-page draft opinion taking away the right to be free from forced pregnancy and birth, one would think SA could have dedicated at least a page or two to acknowledging what he was taking away from women. But instead, SA gaslights women by citing the lack of laws protecting women's rights several hundred years ago as proof that women lack any entitlement against forced pregnancy today. And he applies RBS, thereby making forced pregnancy and birth invisible to the law as a serious burden on liberty.

Under RBS, the zygote--which is NOT a baby under any reasonable definition--can just be the simple raw material that it is without requiring anything special to justify its "protection" from the woman whose body would unwillingly turn it into a baby. The use of RBS is extraordinary gaslighting, given that even if SA never gave a thought to what forced pregnancy does to a person's body, one of his law clerks or perhaps another Justice could have explained it to him. They might have quoted him the part of his Federalist Society speech which he said that the COVID-19 pandemic led to "previously unimaginable restrictions on individual liberty." I suppose it is easier for SA to imagine forcing a woman into reproductive servitude than it is for him to imagine having to wear a mask, receive a vaccine, or forgo some number of in-person concerts or worship services--despite the fact that the people who benefit from compliance with public health mandates are actual persons, not zygotes.

SA's draft opinion stands as a testament to the primacy of religion for this Justice and for this Court. Because God punished women with the pain and distress of pregnancy and labor for Eve's rebellious decision to eat from the Tree of Knowledge of Good and Evil, women deserve their predicament, and there is "nothing to see here." Perhaps SA should have eaten from that same tree. He might then have appreciated how profoundly wrong, how evil, his draft opinion is.