It has been less than a week since the draft of Associate Justice Samuel Alito’s majority opinion overturning Roe v. Wade was leaked. It is a proposed decision and holding that is often pedantic, divisive and based upon a dubious legal theory.
Alito is known for his abrasiveness. His Catholicism is very conservative and at a November 2021speaking engagement at Thomas Aquinas College he declared that Obergefell (the Supreme Court case that established the constitutionality of same sex marriage) infringed upon religious liberty.
On a personal note, as a Catholic and as an attorney of thirty-three years, I don’t see how it has adversely impact upon the practice of my faith. The associate justice’s comment does, however, stand out as a hint that the Supreme Court associate Justice is confusing the ability to oppress others with freedom.
It was during that same speaking engagement that Alito described his legal philosophy of Originalism – a doctrine that posits that the Constitution is dead letter law and must be interpreted through the eyes of the Founders. Accordingly, he declared:
Originalism is the idea that the Constitution has a fixed meaning; it doesn’t change. It means what people would have understood it to mean at the time it was written,” Justice Alito observed. “Applying Originalism as a justice, however, means you take into account some practical realities,” such as stare decisis, or the power of precedent. “If you are a strict academic originalist, you don’t have to worry about precedent. You might consider it prudent to go back and reconsider past cases. But this is not practical for a Supreme Court Justice,” he continued, adding that he “almost always follow[s] past decisions.
On page five of his draft opinion it as clear as day that Alito employees Originalism to overturn Roe v. Wade. He writes:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any Constitutional provision.”
But there is an inconsistency in the associate justice’s thinking. While Alito looks for original intent and strict construction in the Constitution, he fails to apply the same standard to the Bible. Abortion is mentioned but once in the Good Book and when it’s mentioned, it can be interpreted as undermining the religious case against the practice.
Beyond that, the conservative justices that hide behind Originalism practice a bit of mendacity. The doctrine incorrectly presumes that all the Founders viewed the Constitution as dead letter law. That is not the case. Indeed, several of the Founders believed the Constitution to be a living, breathing document. As the then soon-to-be Associate Justice Louis Brandeis observed in 1916 Alexander Hamilton rejected Originalism. Indeed, over time so would another Founder, James Madison
But there is a more serious problem with Alito’s reasoning in overturning Roe: He has paved the way for states to incorporate orthodox Catholic prohibitions against abortion into law. Louisiana is but one example. It is now moving quickly towards abortion legislation that would allow no exceptions, even those for rape or incest.
Such legislation rods roughshod over the beliefs of numerous Christian denominations, not to mention other religions that are pro-choice on a theological basis as there are other religious denominations that believe that abortion is a matter of individual conscience. And yet there are other denominations whose position is more complicated. Different faiths and denominations disagree on abortion.
For example, in Judaism when a mother’s life is endangered by a pregnancy, it is Jewish law that the mother’s life, a life in being, takes precedent (as a Catholic, I would posit that there is a strong presumption that Jesus, being Himself Jewish, would accept this position). Associate Justice Alito has essentially ruled that a pregnant Jewish woman who will risk death if the pregnancy is carried can be denied an abortion – against her religious beliefs. That being the case, then Alito and other four Justices joining him can no longer claim the mantle of religious freedom, but of religious supremacist. And that runs squarely against the Establishment Clause in the First Amendment. Alito has essentially declared orthodox Catholic theology to be the law of the land on abortion.
And therein lies the conundrum. The Jewish (or any similarly situated) woman that would require a late-term abortion to save her life could be denied one. If she chose to act in accordance with her religious teaching terminate her pregnancy she could that be prosecuted for homicide. Would a Justice Alito allow for such a scenario? Apparently so.
Let us for now put aside the dubiousness of associate Justice Alito’s legal philosophy. What is truly frightening here is that she has given a green light for individual states to violate establishment clause of the Constitution. To encourage such behavior is not the essence of religious freedom of religious supremacy and oppression.