The Real Tragedy of Samuel Alito’s Logic

Samuel Alito
Photo: Erin Schaff-Pool/Getty Images

The promise of the United States has been our commitment to liberty and justice for all. The practice of the United States, of course, has been our commitment to liberty and justice for some. And yet that gap between practice and promise has been historically framed as our opportunity to expand liberty and justice. The narrative we’ve inherited about America, or at least told ourselves about our country, is largely one where the chasm is continually closing—where we become more inclusive, more accepting, more welcoming. Since the leaked Supreme Court ruling overturning Roe v. Wade became public, I have found myself in a state of slowly escalating rage at this stark reminder that we are capable of regression as much as progress, and that rights given can also be taken away. The moral arc of the universe can bend toward injustice if we don’t continually work to direct it ourselves. 

Our collective understanding about abortion, largely filtered through the distortion of polarized media, often oversimplifies an obviously complex subject. Pew Research recently published the results of a comprehensive survey of Americans’ views of abortion, and it’s nuanced. Support for abortion depends on factors like the duration of a pregnancy before termination, personal health risks, and more. The full report is worth your time, but this line really stood out to me: Most people (72 percent) say that this statement—“the decision about whether to have an abortion should belong solely to the pregnant woman”—describes their views “at least somewhat well.” Unsurprisingly, a nation obsessed with individual freedom generally thinks that the decision about whether to go through with a pregnancy should be decided by the person who is pregnant. 

Yet this leaked Supreme Court ruling would steal that decision away from pregnant women and instead encourage a policy of forced birth in a society that does not value the lives of those being birthed—or those doing the birthing. This decision empowers those invested only in the creation of life, not the quality of life. If we cared about quality of life for the living, we would offer up more than “thoughts and prayers” in response to our record levels of life-ending gun violence. We would move heaven and earth to reverse the life-ending effects of the climate crisis. But we aren’t regulating gun manufacturers or carbon-spewing industries. Instead, we’re choosing to use our finite resources to regulate women and force them to give birth in a nation where infant mortality rates are appallingly high compared to other industrialized and wealthy nations in the Organization for Economic Cooperation and Development (O.E.C.D.).

Indeed, we’ve chosen to undermine families by failing to provide universal healthcare, paid family leave—we’re the only wealthy nation that offers zero weeks of leave compared with the O.E.C.D. average of 18 weeks—universal childcare, or quality sex education. And who’s going to pay for all these forced births? Even with insurance, childbirth often costs parents thousands of dollars. Will the two dozen or so states that are likely to force births on their residents also pay their medical bills? No. Roughly one-third of women report having traumatic birth experiences. Will these states offer them free counseling? No. They will instead impose the physical, emotional, and financial burden on women, particularly poor women of color, as we’ve done throughout history while men, who play a critical role in child-making and law-making, leave ourselves unaccountable. 

These are some of the real costs of the Supreme Court’s drafted decision. But there is an even more infuriating philosophical point that is articulated in Justice Samuel Alito’s argument. And it is squarely fixed on widening that gap between practice and promise. After all, there is an irony at play here, and it is one that reminds me of slavery.

America spent generations investing in the belief that Black people were subhuman monsters prone to violence, laziness, and incapable of higher mental functions. White Americans invented religious and scientific justifications for their barbaric treatment of their fellow humans, and didn’t trust Black people to vote, own property, or even own themselves. And yet they somehow trusted these supposed beasts to build their cities without fear of them crumbling, cook their food without fear of being poisoned, and raise their children without fear of any harm befalling them. 

Our society is engaged in the same hypocritical circus when it comes to the rights of women. We trust women so much with our care, literally from birth to death, that we just expect them to do it. We see this trust play out in our healthcare system, among the ranks of nurses; in our schools, among the ranks of teachers; and we see it in our families, when someone gets sick or merely gets old. We need look no further than the current Covid-19 pandemic to see that the overwhelming weight of it was born by women forced to give up their careers to help with coping or home-schooling or lending support to a sick relative. 

In all cases, we assume that a woman will provide care and make decisions in the best interest of life. We just don’t trust them to make care decisions for themselves regarding their own pregnancies. It’s women who bring life into this world through their bodies, and yet our society doesn’t entrust them to adequately determine when a child (or in the case of 60 percent of abortions, another child) is too much to handle. Instead, we invent excuses that poorly disguise our ingrained cultural sexism. 

This is especially true with poor women who are Black or brown. These are the women who will bear the burden of forced births most acutely. These are the women our Supreme Court is empowering white male-dominated state legislatures to control. Rich women can travel out of state for an abortion or hire a poor woman of color to care for their child. But the majority of women seeking abortions are non-white and often poor in regions that offer the least financial, educational, and healthcare support to their residents. 

While this decision will disproportionately impact poor women of color seeking abortions, there’s another less-discussed risk to Americans trying their hardest to become parents with the help of reproductive technologies like I.V.F. Fetal “personhood” laws that claim life begins at fertilization are on the rise, and this Roe reversal will only complicate an already complex journey for many simply trying to have a baby, and not even thinking of abortion rights. As Dr. Natalie Crawford asks in this Instagram post, “should you be forced to birth all embryos?” I know countless couples struggling to have babies, and the last thing they need is a fanatical state legislator in the room with them and their doctor weighing in on their family planning. 

It’s not just the removal of federally-protected abortion rights that so bothers me. It’s also the justification that Justice Alito used in his draft opinion. In short, he cited the absence of abortion rights in our Constitution, written during a time when women were essentially considered property, to support the removal of abortion rights and bodily autonomy to women in the future. Oh, the perverse circularity of this! There’s a lot we take as sacred and protected that’s not in the Constitution: Black folks as full persons, the filibuster, and cheap access to infinite internet video come to mind. 

Alito’s flawed reasoning here is not unlike the tech algorithms building our future on datasets mined from our unjust past. I’m reminded, for example, of when Amazon experimented with using A.I. to screen job applicants. The algorithm looked backward to determine which traits appeared to make for a successful Amazon employee, and then filtered applicants based on those characteristics. The problem was, of course, that historically only men held those jobs at the company, so the algorithm filtered out women. Amazon automated sexism! The highly-educated legal mind of Alito has made a similar choice. As Jill Lepore wrote in The New Yorker, “Alito, shocked—shocked—to discover so little in the law books of the eighteen-sixties guaranteeing a right to abortion, has missed the point: hardly anything in the law books of the eighteen-sixties guaranteed women anything. Because, usually, they still weren’t persons.” 

History can be a guide, but history is also history for a reason—especially so in a society predicated on growth, progress, and an expansion of liberty. If we can’t find liberty for certain people in the past, according to Alito, there’s no justification to find liberty for them in the future. So, let’s send Black folks back to the fields, children back to the mines, and LGBTQ+ people back to the closet! What is the point of this country, of innovation, if we are so committed to the past that we use it not as a foundation to be expanded upon, but as a prison to hold us back? 

Alito seems particularly proud of himself when he writes that this decision “allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” I heard Senator Ted Cruz saying something similar on the Sunday talk shows: “the result is not that abortion is illegal across the country. The result is that it’s up to the people, that it’s up to democracy.”

Aye, there’s the rub. Democracy. This would be great if we lived in a functioning democracy. But if we lived in a functioning democracy, then the existing will of the people, those 72 percent who say a woman should govern her own body, would be respected. If we lived in a functioning democracy, the Republican Party would distance itself from the conspiratorial and lunatic rantings of a former president who refuses to accept his electoral defeat. That party would loudly decry, rather than co-sign, insurrection. That party would expand, not curtail, voting rights, because that party would be eager to compete for the opportunity to represent the people. It wouldn’t spend its resources empowering party hacks to commandeer election infrastructure in order to overturn the will of future voters. And a number of conservative justices who said during their confirmations that Roe was settled wouldn’t be voting to overturn it decades later once they achieved a majority.

But we don’t live in that America. We live in an America in which Mitch McConnell stole a decisive Supreme Court appointment from Barack Obama; in which the Electoral College is still delivering on its foundational promise to disproportionally favor rural (then Southern slave-holding) states. We live in a system of minority rule where the will of the people is poorly represented by the decisions of our politicians. So when Senator Cruz says, “the people” get to decide, he means people who agree with him in a system rigged to advantage those people. That is not democracy.

For all the rantings of people like Cruz and the extremists who stormed the Capitol about living under tyranny, losing their rights, and not having a voice, I can’t point to any rights that conservative white men have lost. They now have to compete in ways they didn’t have to historically, but they have more guns than ever; they dominate our politics; and too often, their minority view is our reality. Yet the majority of us who voted for Al Gore and Hillary Clinton, who voted for Obama and his nomination of Merrick Garland, who voted for Biden and his Build Back Better plan, aren’t getting what we voted for. The people who have actually lost rights these past few decades in America are non-white immigrants, Black voters, and women. Given the theft of a SCOTUS seat, the increasingly misrepresentative nature of the Senate that confirms these positions, and the increasing detachment of the popular vote from presidential election outcomes, one can legitimately argue that this current Supreme Court lacks legitimacy. Its current configuration is a result of the suppression of the people’s will, not its expression.  

We have been here before. I’m struck by the fact that we often refer to ourselves in the United States as the world’s longest-running democracy, but for most of our history, most of our people weren’t allowed to participate, so we weren’t really a democracy for all. Based on my definition, if you’re not a democracy for everyone, you’re not a democracy. When we abolished slavery, we briefly experienced the period of Reconstruction, before welcoming Jim Crow. White women got the right to vote in 1920 and all women had their voting rights federally guaranteed only by the 1965 Voting Rights Act. The government used to violently put down efforts to organize labor. I could go on. 

The point is we kept pushing. We adapted. People who on the surface weren’t directly affected by the problems joined and helped. White Northerners joined freedom rides because they felt held captive by a system which would keep their fellow humans un-free. Men joined with women in a demand for equal rights even though we’ve so far failed to amend the Constitution to fully codify that equality. People organized, sometimes in the streets, sometimes in their workplaces. And just as so many women who know the pain of childbirth, or child loss, have used that pain to fight for a better world, so too must the rest of us recommit to turning the promise of America into practice at this painful moment.  

That means we must invest real energy on the ground and in the states. We need to support organizations like ARC-Southeast and Frontera Fund which are helping women fight for reproductive justice with education, financial assistance, advocacy and more, and we should do the same in liberal-led states who will face increased demand from health care refugees living in conservative-led states. We need to expand our focus from national debate and campaigns to those at the state and local level and invest in organizations and candidates who are going to do a better job of representing the will of the people and stop our slide into minority rule. We need to remember that people who think decisions about continuing or ending a pregnancy should be made by the person who is pregnant are an overwhelming majority. And we need to acknowledge, as my colleague Peter Hamby recently wrote, that this theocratic backsliding was the result of a 40-year, determined, and comprehensive strategy by a passionate right wing minority that did far more than text its base with police car light emojis demanding $15 to fund candidates in the upcoming midterms. 

We need to do all this with passion and ferocity, but we don’t need liberal extremists to balance out conservative extremists. We need to state clearly that our goal is not simply to preserve life, but the entire trifecta of life, liberty, and the pursuit of happiness. We need to ask women and parents what they need to achieve that, and then provide it. We know some of the answers already: paid leave, childcare, livable wages, maybe getting lead out of the water. In fact, Pew found that while a majority of Americans think stricter abortion restrictions will limit the number of abortions, even larger majorities think a better way to reduce the number of abortions is to expand sex education and increase support for pregnant women and parents. The American people actually kind of get it. It’s the political leadership and the system that produces it that have gone rogue. 

Finally, we need to acknowledge that this issue is not simple and that morality and legality are different things. From my reading of the Pew Research, even those strongly opposed to abortion on a moral basis don’t believe it should be illegal in most cases. I know women who’ve had abortions, and I can attest to the seriousness with which they’ve made that decision. It’s not fun. It’s emotional and difficult and painful, but it’s also something they deemed necessary. Most people don’t want to be in a position to have to choose an abortion. 

For some women, abortion is the only way to save their lives, and the new wave of incoming restrictions will bring new stresses and new threats. As a friend of mine and mother of three recently told me, “Suddenly planning for my children’s future is not about saving for college—it’s finding ways to protect them from being thrown in jail for having a miscarriage.” We should not criminalize women or further isolate them. We need to trust women and close that gap between the practice and promise of this country on our path to liberty and justice for all. I think we can. I believe we must. I know it will be hard.