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Friday, February 23, 2024
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Opinion|Samuel Alito Opened the Door to Reproductive Hell

https://www.nytimes.com/2024/02/23/opinion/alabama-embroyo-dobbs-reproductive-freedom.html
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Jamelle Bouie


SAMUEL ALITO OPENED THE DOOR TO REPRODUCTIVE HELL

Feb. 23, 2024

Credit...Stefani Reynolds for The New York Times

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By Jamelle Bouie

Opinion Columnist

Despite the lofty and expansive rhetoric of his majority opinion in Dobbs v.
Jackson Women’s Health Organization, Justice Samuel Alito insisted throughout
the text that the actual decision was more modest than it might appear. The end
of Roe, he said, was not the end of abortion access as much as it was the
beginning of a new era of democratic deliberation and decision making. No longer
shackled by a prior dictate of the Supreme Court, the people were free to
choose. “It is time to heed the Constitution and return the issue of abortion to
the people’s elected representatives,” Alito wrote.

But, as the legal scholars Melissa Murray and Kate Shaw (who is also a
contributing Opinion writer) argue in a recent article in The Harvard Law
Review, it is difficult to square Alito and the Dobbs majority’s paeans to
democracy with their pointed hostility to both voting rights and equal
representation. “Viewing the Roberts court’s many interventions in this sphere
in tandem,” they write, “it is clear that this is a court that no longer
understands itself as largely or primarily functioning to facilitate the
exercise of meaningful democracy in these ways; rather, in many instances, it
appears to be actively working to undermine these goals.”

There was more at work in the Dobbs opinion than the majority’s disingenuous
concern for democratic participation. Alito and his conservative colleagues did
not just open the door to new abortion restrictions; they took aim at broader
rights to bodily autonomy and personal freedom while laying the groundwork for
the divisive notion of fetal personhood — an idea that, for all the court’s talk
of democracy, is fundamentally incompatible with any modern notion of equal
citizenship.

As Murray and Shaw observe, “The court’s repeated references to ‘fetal life,’
‘potential life’ and ‘unborn human being[s]’ may have been designed” to
“broadcast receptivity to such claims to litigants and lower courts.” What’s
more, some courts have already “eagerly embraced this fetus-forward posture.”



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One of those courts, it appears, is the Alabama Supreme Court, which ruled last
week that frozen embryos in fertility clinics were “extrauterine children”
subject to an 1872 state law allowing parents to sue over the wrongful death of
a minor. “Even before birth, all human beings bear the image of God, and their
lives cannot be destroyed without effacing his glory,” Chief Justice Tom Parker
wrote in a concurring opinion, in which he also quoted directly from the Book of
Jeremiah.

The Alabama court’s ruling rests on a broad interpretation of the state law in
question. As Justice Greg Cook wrote in his dissent from the 8-to-1 decision, “I
dissent because the main opinion violates this fundamental principle — that is,
that the legislative branch and not the judicial branch updates laws — by
expanding the meaning of the Wrongful Death Act beyond what it meant in 1872
without an amendment by the legislature.”

Subscribe to The Times to read as many articles as you like.



Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he
was the chief political correspondent for Slate magazine. He is based in
Charlottesville, Va., and Washington. @jbouie

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