The leaked opinion written by Supreme Court Justice Samuel Alito in the Dobbs v. Jackson Women’s Health Organization it has, needless to say, generated substantial controversy.
As we all know, the draft of Alito’s majority opinion indicates the prospect of overturning by the court of the historic 1973 decision in the case of roe deer v. Veal, which sanctified a woman’s right to abortion and, above all, to control her body and make decisions about her own health and well-being, particularly with regard to reproductive health.
While we all know the stakes of the opinion, it is also fundamental and productive to understand how the logic – or, in this case, illogical – of how the opinion is argued and comes to the decision that the Constitution does not guarantee the right to abortion.
Less attention has been given, in discussions and media analysis, to the actual text of Alito’s opinion, especially the atrocious cultural assumptions and curiously flawed historical analysis and reasoning, which I believe is important to do in order to challenge and build effectively mass resistance to opinion.
In my next pieces in Politicus Usa, I will involve Alito’s opinion in a textual analysis, highlighting harmful, ridiculous and often simply illogical elements, then calling attention to the fact that this opinion is ultimately a predominantly ideological piece rather than a serious or substantive legal argument. Engaging the text so tightly and seriously has the advantage of highlighting the ugly cultural assumptions, regressive treatments, and understandings of history that serve as so much legal jumbo and verbiage that it masks the grossest misogyny and authoritarianism in polite terms. .
In this opening piece I want to address how an ideological misogyny informs and supports Alito’s writing with varying degrees of subtlety, replacing a real argument and even blurring the lack of a real argument.
Let’s start, however, with some recent history which provides important context to understand when reading Alito’s opinion.
In 2011, the late Supreme Court Justice Antonin Scalia outraged many Americans when he observedreferring to the prospects of including an Equal Rights Amendment (ERA) in the Constitution, which “no one has ever voted in favor”.
Scalia clarified thatt, on 14th Despite the amendment, in her view of the Constitution it contained no provisions for equal rights for women. Insisting that if “society wants to ban discrimination based on sex, hey, we have things called legislatures.”
In short, in Scalia’s worldview discrimination against women is perfectly constitutional and permissible and women are not seen as equal in the context of the Constitution. Despite the 14th the amendment includes the clause “nor shall any state deprive any person of life, liberty or property, without due legal process; nor deny any person within its jurisdiction the equal protection of the laws “, Scalia avoids the ERA’s basic claim that” Equal rights under the law must not be denied or reduced by the United States or from any state due to sex. “
In short, because women were not seen as having the constitutional right to equal protection under the law, they should not be considered people, like Terry O’Neill, then president of the National Organization for Women. underlined in 2011: “A man in power like Antonin Scalia insists that the word person in the 14th Amendment does not apply to half the population of the United States,” he said.
We have to think that the ERA’s failure to approve over decades paved the way for Alito’s opinion.
This brief background is important for understanding Alito’s opinion because the unspoken premise of Alito’s “argument”, never openly articulated, is that women are not people but fetuses.
Indeed, according to Alito there is a missing person, and that person is the woman.
Let’s take a look at how women’s stories, experiences and perspectives are eliminated from Alito’s text.
In section I of the opinion (starting on page 6), Alito disposition what he calls “factual results” in the Mississippi Gestational Age Act. He details how the act is explained when the fetus has a heartbeat, hair and nails, functioning vital organs and so on. He concludes this paragraph, presumably devoted to “factual findings”, by citing the description of the abortion procedure law and his conclusion that
“The intentional engagement of such acts for non-therapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient and humiliating for the medical profession”.
This last clause is not a factual statement and betrays a perspective and a set of seriously prejudicial and unilateral assumptions, absolutely erasing the voices and experiences of millions of women and health workers.
Many women, as we know, view abortion as part of their health care, not as something “dangerous”.
And we know that many health professionals see abortion not as “humiliating” but as a dignified and responsible way to care for women’s health and well-being.
Alito here speaks in a rather prejudicial way of the interests of women and health care workers while in this piece he effectively silences them.
Indeed, while he insists that “our decision is not based on any point of view as to when a state should regard prenatal life as having legally recognizable rights or interests”, the whole opinion is based on the assumption that a fetus is a life, and Alito speaks more to the interests of the fetus than to women. And we know why, because, like Scalia, Alito works on the assumption that the Constitution does not actually recognize a woman as a person.
Once again, America’s refusal to approve the ERA and recognize women’s equality will have greatly enabled the Supreme Court to overturn Roe v. Wade, it should happen.
As we’ll see in the next piece in this series, Alito repeatedly and largely, if not completely ignores, the actual historical and material experiences of pregnancy, childbirth and motherhood, particularly as they impact autonomy, freedom, and on equal rights for women, giving much more attention to the fetus.
He repeatedly argues that abortion is not a right “deeply rooted in the history and traditions of the nation”, seeing these historical and cultural conditions as criteria for determining whether or not abortion is a constitutional right.
But we must note from the perspective of those who are evaluating the nation’s historical and cultural traditions.
Put simply – and I say this as a professor of American literature and culture – I feel safe to say that Alito is by no means looking at the history of women’s cultural traditions, women’s thoughts and political struggles, and actual historical experiences in doing this. affirmation.
Indeed, there is a missing person – and a missing perspective – according to Alito, and I will explore this dangerous disappearance, this elimination, in the pieces that follow in this series.
Tim Libretti is a professor of American literature and culture at a state university in Chicago. A longtime progressive voice, he has published numerous academic and journalistic articles on culture, class, race, gender and politics, for which he has received recognition from the Working Class Studies Association, the International Labor Communications Association, the National Federation of Press Women and the Illinois Woman’s Press Association.