So, I've read through much of Alito's opinion overturning Roe v. Wade. There are many points one could argue. One of the most crucial is his dismissal of abortion as a women's issue. Because there is no intent in singling out women as the exclusive target of this legislation, he dismisses as irrelevant the idea that it could be discriminatory. I don't mean that he determines that it is not. Alito breaks with the long history of civil rights law, and declares the burden of proof lies with the victim. It is not enough to show that the law has severe effect on women and women alone. The state must first show that it was the intent of the law to discriminate. This, of course, is an unattainable bar, so none of his discussion even considers women as relevant parties in their pregnancies.
Much of his discussion is on the long history and tradition of laws against abortion. But, astonishingly, he includes without comment a law that concerned a miscarriage caused by an act of violence against a woman. Such a law is not entirely irrelevant, since it is related to the question of the unborn as a person entitled to legal protection. But the case it makes is very weak: an act of violence that damages any other part of a woman is illegal. It actually makes a stronger case in the reverse, since it defined a time in which the violent death of a prenate is not considered murder. But more concerning is that Alito includes this without comment, as if he sees no difference between an act of violence against a woman and a medical procedure she chooses. The woman, and her desires, are irrelevant, it appears.
His dismissal of the question of fetal viability is so bizarre it appears disingenuous. On the one hand, he castigates Roe and Casey for ignoring the question of when the rights of the unborn must be considered, then with the other he dismisses as irrelevant the mechanism they provide for doing so. He doesn't explain why he thinks fetal viability is arbitrary and indefensible. Given that the entire question is when the unborn should be considered a person independent from the mother, what is more logical than the point at which said child could actually be a person independent from the mother? This is the dividing line laid down in Casey, an eminently reasonable one. It also has support in Alito's case history of abortion law, as many state laws distinguished between death of the unborn before and after "quickening," a point during the pregnancy when the life of the child was demonstrated. One can debate whether fetal viability is the right place to draw this line, of course one can. But Alito doesn't. He says it doesn't make sense to him. I suppose if you don't see women as important in pregnancy, the point at which they are no longer necessary to maintain life would be irrelevant... maybe Alito thinks babies are found in cabbage patches?
Okay, that was an ad hominem, I apologize.
What makes Alito's arguments really disingenuous is the way he reaches the opposite conclusion when considering gun rights. The second amendment is clear and specific about the right to bear arms:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
"The people" have a right to bear arms in a well-regulated militia. "The people" is a collective noun. "The people" may exercise rights without any individual person necessarily possessing that right. Don't take it from me, take it from Alito's own argument. He disputes that Roe returned the question of abortion to "the people," and says that, in fact, it imposed a decision on the people. It prevented "the people" from deciding to outlaw abortion. The question of abortion is not, in his mind, a choice that individual persons may make, but that the collective people should rule on. Yet here, in the second amendment, where the context is clearly a collective right, Alito reads "the people" as the right of individual persons.
It isn't just this one line of text, either. For someone who claims that the Constitution must be understood with the intent of its authors, little is more clear than the intent of the Second Amendment. James Madison gives extensive discussion of it in The Federalist. The concern was the ability of the Federal Government to use force to impose federal law on the states. The states were to be allowed to maintain their own militias. Anyone who claims to be an originalist who finds an individual right to bear arms in the Constitution is a liar, plain and simple.
Alito's exploration of the history and tradition of law also goes against him. Just as abortion was illegal in many states before Roe, the bearing of firearms was also regulated up to the very time that abortion laws began to repealed. The notion of a right to own guns is as recent as the right to an abortion. But moreso than abortion, American history and tradition has gone squarely and consistently against the Second Amendment. When Arkansas attempted to use their militia--the Arkansas National Guard--to prevent the enforcement of civil rights legislation at Little Rock High School, President Eisenhower placed the guard under federal control. He directly contravened the Second Amendment, in a case which was exactly the sort of thing the amendment had been written to prevent. No court found against him.
Probably because the only major case of states asserting their Second Amendment rights was such a disastrous failure. It was called the Civil War. States used their militias to prevent the federal government from enforcing its will against the states. Rather than a constitutional right, this was found to be insurrection. Not only did states not have the right to resist, it turned out they did not have the ability. Both the right, and the effectiveness, of armed defense against the government was decisively rejected.
All this documentation, history, and reason is nothing to Alito. He wants there to be an individual right to bear arms, so he invents one. But when women want the right to decide what to do with their own bodies--at least as long as their bodies are an essential part of the proceedings (viability)--he says that makes no sense.
There are reasons to debate the morality of abortion. But Alito's opinion is random musings wrapped around whatever he wants.
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