The draft opinion overturning Roe v. Wade is built on the assumption fetuses deserve special treatment while denying that assumption is being made. Liza Batkin explains with “Deceit in Plain Sight” for the New York Review of Books:
Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization would have you believe that the forthcoming decision to overrule Roe v. Wade is a display of great judicial restraint and independence. The draft is written in the language of solemn duty: we do not want to take away abortion rights, the conservative justices say, but it does not matter what we want. “We can only do our job,” Alito writes, “which is to interpret the law,” and to do so regardless of personal preferences or public opinion. In the draft decision’s logic, it was Roe that exercised “raw judicial power” and Dobbs that will remedy this error by returning “the issue of abortion to the people’s elected representatives.”
These claims to neutrality and humility should make you nauseous and irate. For one thing, they come in the middle of a decision that would wield extraordinary power, disposing with a nearly half-century-old fundamental right and reshaping the lives of millions of Americans. It’s also skin-crawling that these justices pretend to be concerned with empowering “the people” through their representatives after eroding the voting rights and electoral rules that would have allowed them to be adequately represented.
This performance of duty comes from justices who have routinely championed religious interests, were nominated by Republican presidents, and have all been affiliated with the Federalist Society, an organization dedicated to promoting conservative legal ideology. While only Justice Barrett has made explicit her personal opinions about abortion, stating in a co-authored law review article in 1998 that it is “always immoral,” the others are clearly not sacrificing their moral or political views for some higher charge.
You don’t need to look very far to see that the decision is a power grab cloaked in false modesty. The flaws in the majority’s central argument, that Roe was wrong to recognize a fundamental right to abortion, have been well-exposed elsewhere. But there is another deceit at play here: while claiming fidelity to the constitutional text, the majority’s draft is steeped in unexplained views about the importance of protecting fetuses at all stages of development—views that do not come from the Constitution but have traditionally been the purview of conservative and religious antiabortion advocates, and that are exactly the kind of personal belief the majority claims not to rely on.
The issue of abortion since Roe has been a battle between competing rights: a pregnant person’s right to control their reproductive choices, and the state’s interest in protecting the potential life of a fetus. To balance these different interests, the Court has historically tried to avoid opining on the legal or moral claims of fetuses, since the issue teems with conflicting beliefs. One way to establish when the state’s interest in protecting potential life becomes compelling, the Court recognized in Roe, was to determine “when life begins.” But after a brief survey of opposing religious, philosophical, and theological views, the Court steered clear of the mire and landed instead on the line of viability, which protects the right to abortion until the fetus can survive outside the womb.
If you take Alito at his word, the Dobbs majority has managed to sidestep this balancing act altogether. The draft decision proclaims that it is “not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests” and says little about the source, strength, or timing of the state’s interest in potential fetal life.
But the majority has not avoided the issue. While claiming high-minded neutrality, they hint over and over at views about the importance of protecting fetal life. Early in the opinion, Alito explains that abortion “is fundamentally different” from all other liberty interests “because it destroys what [Roe and Casey] called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” As a result, the right to abortion presents a distinct and “critical moral question.” The draft makes this point four times.
There is, however, no reason to assert that abortion at all stages of a pregnancy presents a unique and “critical moral question” unless one already gives weight and legitimacy to moral claims for the protection of fetuses at all stages of development, starting even as soon as conception. How else can we explain the draft opinion’s circular insistence that the right to abortion is different from other rights simply because it destroys fetuses, which merely defines what an abortion does?
The terms the draft uses, too, are revealing. In veering from the “potential life” invoked by Roe and Casey and repeating without qualification the language used by the Mississippi legislature along with antiabortion amicus briefs that defend the rights of the “unborn human being” and the “unborn child,” the majority divulges its allegiances. The footnotes tell the same story. In addition to citing a large array of prior dissenting opinions by conservative justices which have no legal authority, the draft draws on amicus briefs and articles dedicated to proving that fetuses are people. Alito’s majority does all of this while claiming that it “has neither the authority nor the expertise to adjudicate” disputes about “the status of the fetus” and citing language that courts must not “substitute their social and economic beliefs for the judgment of legislative bodies.”
While we rally to protect the right of pregnant people to make decisions about their bodies and futures (and desperately hope that this draft decision does not become law), we should recognize what’s going on here. The [reactionary] justices are preparing to abuse their power, cause grievous harm, and treat us—the “people” they pretend to empower—like fools, assuming we won’t notice the contradictions they’ve left in plain sight.