19th-century standards used to limit women's rights
By Reva Siegel / Special To The Washington Post
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court justices President Donald Trump appointed to reverse Roe have just made good on his pledge. The decision so dramatically limits women’s constitutional liberties that one can almost hear the chants of “lock her up!” from Trump’s supporters.
On the right, however, the decision isn’t being viewed as a step backward. Rather, it is being hailed as a constitutional restoration; a triumph of “originalism” over “living constitutionalism.” Justice Samuel Alito, who wrote the majority opinion, sees himself as restoring constitution as law and cleansing it of politics.
But Dobbs is plainly a political project. Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values undercover of highly selective historical claims.
Alito’s opinion — joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — follows a kind of originalism in tying the Fourteenth Amendment’s meaning to the distant past, even if it doesn’t purport to identify the meaning of the amendment to voters who ratified it. (Roe located the right to abortion in the liberty guarantee of the Fourteenth Amendment’s Due Process Clause.) Rather, Alito follows a case called Washington v. Glucksberg (1997) and interprets the Fourteenth Amendment’s guarantee of liberty in light of the nation’s “history and traditions”; according to this view, only rights deeply embedded in that history are protected. And the right to an abortion is not, the majority said this week.
https://www.heraldnet.com/opinion/comment-19th-century-standards-used-to-limit-womens-rights/