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Akhil Amar and the Dobbs draft

Associate Justice of the Supreme Court of the United States Samuel Alito.
AP Photo/Cliff Owen
Supreme Court Justice Samuel Alito participates in the opening panel of Georgetown Law Journal’s annual symposium, in Washington, on Nov. 2, 2017.

Yale Law Professor Akhil Amar, in a prominent defense of the Supreme Court’s leaked draft opinion overruling Roe v. Wade, argues in the Wall Street Journal that it contains “nothing radical, illegitimate or improperly political.” Amar supports abortion access but doubts that it is protected by the Constitution. He emphasizes that Roe was poorly reasoned. He thinks that the “dire assessments” of many writers that Justice Samuel Alito’s draft in Dobbs v. Jackson Women’s Health endangers same-sex marriage and some forms of contraception “don’t stand up to scrutiny.” He even suggests that the new regime might not be very hard on women.

His essay has been trumpeted by many in the conservative press as evidence that even some liberals concede that overruling Roe would be no big deal. But the piece is full of unwarranted optimism and leaps of logic. 

It is true that the reasoning of Roe was unpersuasive. But courts sometimes reach the right results for the wrong reasons. In Brown v. Board of Education, Chief Justice Earl Warren’s opinion relied on shaky social science to declare segregated schools unconstitutional. Warren did that because he wanted a unanimous court, and a condemnation of the entire Jim Crow regime’s vicious racism would have lost the vote of Stanley Reed, a justice from Kentucky. It soon was shown that Brown was unassailable, albeit not for the reasons in the court’s opinion. (Amar knows all this. He cites the “best argument” for Brown, not what Warren wrote.) Should Brown be overruled because the court used the wrong argument? How is Roe different?

Amar writes that “Roe said nothing, amazingly, about the relationship of abortion rights to women’s equality.” Alito’s draft has the same flaw: It “says little—too little—about sex and gender equality,” and Amar thinks that the court “will likely need to take equality issues more seriously.” This is like saying that a boat is seaworthy except for the big hole in the hull. 

Alito disposes of the sex discrimination argument in one short paragraph, relying on a 1974 decision (which Amar elsewhere calls “ridiculous”) holding that discrimination on the basis of pregnancy has nothing to do with sex discrimination — as if the subordination of women were not always about depriving them of control over their reproductive powers. Amar doesn’t give us a hint of how he thinks Alito could defend his position while acknowledging the Equal Protection Clause that, inconveniently, happens to be in the Constitution.

Amar makes a brief sally into originalism: “When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion.” Yes, and almost no one thought it barred racial segregation. The same Congress that passed the amendment also segregated schools in Washington, D.C. Sophisticated originalists such as the late Justice Antonin Scalia long ago saw that one cannot simply try to channel the framers’ subjective expectations when interpreting text. Amar, like Alito, doesn’t even mention the 13th amendment argument, even though forced pregnancy and motherhood were integral to the slavery that the amendment abolishes.

As for the implications for other rights, one should begin by noticing that we are already near the bottom of the slippery slope: This will be a catastrophe for women even if the court goes no further. (Amar blithely declares that “most women” who live far from the nearest state where abortion is legal “should be able to travel to get the treatment they desire.”) But the news is not good for contraception and same-sex marriage.

On his Amarica’s Constitution podcast, Amar declared that there’s no movement to undo the right to contraception: “Lib law professors, you’re just trying to scare people with boogeymen or something.” Some in the conservative press agree

But what is contraception? Many right-to-lifers claim that its most reliable forms, such as the birth control pill and the IUD, are abortifacients. Justice Alito himself has warned of “morning after pills, which destroy an embryo after fertilization.” That’s not how Plan B normally works, and it is uncertain whether it ever harms a fertilized egg. But legislation to ban it is already being considered.

Republican legislatures are already abdicating control over who will be punished for what. The court refused to enjoin a Texas law that empowered anyone to sue anyone who “aids or abets” an abortion — a scheme that could penalize any constitutional right that a legislature doesn’t like. Four other states now have similar laws, and more will probably follow. Some specifically exempt IUDs; some don’t. Statutes criminalizing abortion at any time after fertilization could empower prosecutors to go after doctors who prescribe these contraceptives.

The court probably does not want to revisit the same-sex marriage issue, even though the reasoning of Alito’s abortion opinion is basically copied from his dissent in the marriage case. It may not have a choice. Texas Attorney General Ken Paxton denounced the court’s decision to protect same-sex marriages, and has repeatedly encouraged state officials and citizens to defy it.

Suppose he seizes the opportunity to create a test case, declaring that such marriages are no longer available or recognized in Texas? One could easily imagine the extremist Court of Appeals for the Fifth Circuit upholding that decision, forcing the question onto the Supreme Court docket. Amar points out that this is sex discrimination – “Patrick was allowed to marry Mary, but Patricia was not” – but the court ignored that in its same-sex marriage decision, just as it did in Roe. How can he be confident that it won’t evade it again, as Alito did in his Dobbs draft?

Disclosure: Amar is my friend, he was my constitutional law professor, his course changed my life, and he helped me craft the arguments, discussed above, that the 13th amendment protects abortion and that antigay discrimination is sex discrimination. In his podcast, he calls out by name his friends and former students who, he claims, have mischaracterized the likely results of Dobbs. Here as elsewhere I follow his admirable example. He is egregiously wrong. Even great constitutional scholars have bad days, and this was one of them.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.

Tags Abortion access Akhil Amar Dobbs v. Jackson Women's Health Organization Roe v. Wade Roe v. Wade Samuel Alito US Supreme Court

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