To re-Constitutionalize the right to an abortion de-Constitutionalized by Alito’s opinion, abortion rights advocates need to understand something about the legal morass of the issue. Despite their diametrically opposed positions on a woman’s Constitutional right to an abortion, Blackmun’s and Alito’s opinions—the former adopted in 1973, the latter drafted and disclosed in 2022—share the same fundamental fatal flaws. If the courts amended them, the right to an abortion would be the law of the land.
The first flaw shared by both opinions is their shoddy arguments. Most, but not all, of their defects have been recognized from the moment of their publication, licit or not. Two notable legal scholars who criticized Blackmun’s opinion at the time were Ruth Bader Ginsburg and Lawrence Tribe. Abortion rights advocates pleased with Blackmun’s opinion have been indifferent to his defective reasoning supporting it by substituting medical science for religious beliefs as the decisive criterion for access to abortions.
Many scholars have already criticized Alito’s opinion for its biased selection of facts and biased interpretations of the (legal) history of abortion. Abortion rights advocates, displeased with Alito’s answer have stressed the adverse consequences of his opinion, if adopted: threats to other rights not explicitly enumerated in the Constitution, erosion of democratic principles and practices, and widespread social unrest and violence.
Their second flaw is their mistreatment of religion. Blackmun’s opinion does not ignore religion; it summarizes culturally and historically diverse moral, philosophical, and theological views on the beginning of life and its relation to abortion. But it dismisses its summary by claiming that the case did not ask the Supreme Court to answer the question which no one had answered decisively. This statement is entirely correct and at the same time egregiously wrong. The Court did not have to answer the religious question about when life begins; it had only to recognize first that it was a religious question and second that diverse religious answers to that question are protected under the First Amendment in its two provisions, one for the free exercise of religion, the other from an establishment of religion. Instead, Blackmun sought a Constitutional right to an abortion in penumbras of penumbras of other Constitutional provisions—an effort which distracted Blackmun and has since distracted legal scholars from the religious nature of opinions about when life begins and abortion is permitted.
Alito’s opinion omits religion in favor of a purported history of abortion in Anglo-American law. This omission reflects his determination to avoid religion because he knows that it works against him. His discussion of legal opposition to abortion, which he traces to the 13th century, fails to cite any court decision or government law that defined it as a criminal offense. There probably is none. No royal, ducal, or baronial court dealt with abortion; it fell under the auspices of the Catholic Church, which either ignored abortions or issued mild verdicts and imposed modest penances. Later references to “common law” and characterizations of abortion as “criminal” do not reflect civil law, only the opinions of 17th and 18th century commentators like Coke and Blackstone.
But the clearest case of willful disregard of religion because it works against him is Alito’s implied ignorance, amounting to dishonesty, about quickening. Alito states, “The original ground for drawing a distinction between pre-and post-quickening abortion is not entirely clear”; he adds that some attribute “the rule to the difficulty of proving that a pre-quickening fetus was alive” (p. 21). For sloppy reasoning, the second clause, the relevance of which is dubious, assumes the conclusion, or begs the question, that life properly inheres in some earlier stage of gestation. Until the 16th and 17th centuries, quickening was the accepted Catholic definition for the beginning of life because of the doctrine of “ensoulment.” The doctrine maintains that quickening results from and signifies God’s implantation of a soul in the fetus; until that moment, the fetus is not a life. Difficulty determining life was not an issue. Then, Catholic theologians began to argue that life begins at conception—an argument which became doctrine in the mid-19th century. Alito’s discomfort is that the Catholic doctrine of his faith changed definitions of the beginning of life—an “entirely clear” and undeniable fact that the beginning of life is a matter of religious definition.
What would an honest judge do when faced with a “right” answer but a shoddy argument in its support. An honest judge would seek a well-crafted argument as a substitute. In the case of abortion, that argument would find the answers to the question about the beginning of life, and practices based on those answers, to be diverse, religious in nature, and thereby explicitly protected by the First Amendment—game, set, match.
•. • • • •
The consequences of such an opinion, except for scattered protests and sputtering terrorist attacks, could end the long-simmering, now inflamed, legal controversy about abortion. Some, like Justice Thomas, the arch-hypocrite himself, who, to paraphrase his words, would object to an opinion which they do not like, would continue to grumble. But without a nearly unending succession of legal cases to galvanize it, the anti-abortion movement would lose its momentum. Something like domestic tranquility could prevail.
Alito’s complaint that Blackmun’s opinion had “damaging consequences” invokes a standard which would apply with a vengeance if his opinion prevailed because it would endanger other rights. Alito pretends that this decision, claimed to be unique as a life-or-death matter, can be walled off from other decisions is disingenuous at best. His idea that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion” is absurd; no decision about terminating a pregnancy precludes the decision as a precedent and the use of its arguments in other cases before the Court.
Others have noted that Alito appeals exclusively to rights either explicitly stated in the Constitution or, if among its unenumerated rights, only those rooted in American history and tradition. They have cited some half-dozen other grounds for such rights. Alito’s reliance on only history and tradition makes the Constitution a straight-jacket on the American people. His opinion imposes narrow, straight, white, Christian history and tradition on all others. It stops time and puts it in reverse. It ignores more than the Constitution’s amendment process to allow the country to adapt to changing circumstances. Alito would resist and reverse change.
If Alito’s opinion prevails and the Supreme Court revokes the Constitutional right to an abortion, all is not lost. Several states have or will pass constitutional amendments or enact legislation establishing the right to an abortion. Regrettably, their restrictions will still violate the religious freedoms of more people than they will serve. Moreover, advocates can bring cases against abortion restrictions because they violate First Amendment rights extended to the states under the Fourteenth Amendment.
Allow me to get up close and personal on this point. The only Justices of the Supreme Court who will vote for revocation are all born Catholics. They have made clear that they favor religious beliefs and practices close to their Catholic ones. By revoking the Constitutional right to abortion instead of revising the argument better grounding that right in the Constitution, they impose or allow the imposition of Catholic (and compatible evangelical Christian) doctrine on everybody else. So now is the time to call them to account. They should be challenged whether their concern for religious beliefs and practices extends to the different beliefs and practices of others. They should be challenged whether any legal definition about the beginning of life, with implications for abortion, does not deny the religious freedom of those whose religions have different definitions and constitute a government establishment of (Catholic-compatible) religion. Finally, they should be challenged to show that any such definition does not also double as an expression of historical and traditional Catholic antisemitism. I am content for Jews to serve as the canaries in the cage to detect the debasement of or departures from the Constitution.
•. • • • •
A personal note on my involvement with the abortion issue. As readers of my fortnightly columns for the Las Cruces Sun-News and my blogs since know, I have written about the abortion issue over a half dozen times. My first goes back a dozen years, to 2010. When my interest in the issue arose, I, as a scholar, did what scholars do; I went back to the text of Blackmun’s opinion—no media summary for me. I had known that his opinion had been widely criticized as poorly reasoned. I discovered something which I have regarded as its fatal flaw, something overlooked by all: its failure to recognize the religious nature of the issue and its recourse to medical science to resolve the issue. Simultaneously, I realized that diversity of religious beliefs and practices about abortion justified a right to an abortion, not by some hard-to-find right found by reading between the lines of the Constitution, but by the rights stated clearly in the First Amendment.
The position which I discovered and developed for myself had been anticipated by Justice John Paul Stevens at the time of Blackmun’s opinion. In 2015 or 2016, I called Linda Greenhouse, a Constitutional scholar at Yale and fortnightly contributor to The New York Times, and asked her about my abortion-is-a-First-Amendment-right thesis. She was startled by it because it prompted her to recall Stevens’s opinion, forgotten by her and everyone else. With confirmation that I was not deluded, I contacted various groups which I assumed would be interested in this thesis as a Plan B if, as seemed likely, the right to an abortion continued to be whittled away. I contacted ACLU, NARAL, NOW, and Planned Parenthood, to no avail. None returned my calls or read my paper.
I generously concluded—other conclusions are possible—that the abortion rights community was so committed to the 1973 and 1992 cases that it feared that a different argument for the right to an abortion might divert resources from support for Plan A. With Alito’s opinion likely to prevail, reverse precedents, and revoke a Constitutional right, people are suddenly recognizing or revealing an understanding that, after all, the issue is a religious one. The fear of undermining these rulings explains why, until now, rabbis have not made public the Jewish position on the beginning of life, the moment of breach, as a criticism of any effort to decide or legislate against abortion. Such are the deficiencies of group-think, with the result that these organizations have let down the side. Now, late but, I hope, not too late, the abortion rights community seeks a Plan B.
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