Supreme Court Justice Samuel Alito, who wrote the court opinion overturning abortion precedents, torched his three colleagues who dissented from the court’s 6-3 majority opinion.
What did the dissent say?
Even though liberal jurists, like Ruth Bader Ginsburg, often criticize the jurisprudence upon which Roe v. Wade stood, the dissenting justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — regurgitated trite pro-abortion arguments in their lengthy dissent.
The justices essentially argued that the court’s ruling is dangerous for women — even claiming the ruling means “that from the very moment of fertilization, a woman has no rights to speak of” — and is egregious because it ignores stare decisis to overturn “a fundamental constitutional protection.”
How did Alito respond?
In devastating fashion, Alito addressed the dissenting opinion of his colleagues, accusing them of hypocritically applying standards of precedent.
“The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a ‘deeply rooted’ one, ‘in this Nation’s history and tradition,'” Alito wrote.
The dissent does not identify any pre-Roe authority that
supports such a right—no state constitutional provision or
statute, no federal or state judicial precedent, not even a
scholarly treatise. Nor does the dissent dispute the
fact that abortion was illegal at common law at least after
quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy; that
by the late 1950s at least 46 States prohibited abortion
“however and whenever performed” except if necessary to
save “the life of the mother; and that
when Roe was decided in 1973 similar statutes were still in
effect in 30 States.
According to Alito, “the dissent’s failure to engage with this long tradition is devastating to its position.”
“We have held that the ‘established method of substantive-due-process analysis’ requires that an unenumerated right be ‘deeply rooted in this Nation’s history and tradition’ before it can be recognized as a component of the ‘liberty’ protected in the Due Process Clause,” he explained. “But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.
“The most striking feature of the dissent,” Alito went on to write, “is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.
“Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin,” Alito explained.
“According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed,” he continued. “Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that ‘theory of life.'”