Jill LePore is a professor of history at Harvard and a frequent contributor to The New Yorker. In this article, she analyzes the absurdity of Justice Samuel Alito’s draft opinion overturning Roe v. Wade. Alito was unable to find anything in the Constitution that supports a right to abortion, nor can he find support for a right to privacy. LePore points out that he won’t be able to find anything in that 4,000 word document written by 55 white men that mentions women at all. At the time the Constitution was written, women had no rights. Neither did fetuses. Nor did slaves.
She writes:
Within a matter of months, women in about half of the United States may be breaking the law if they decide to end a pregnancy. This will be, in large part, because Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787. As it happens, there is also nothing at all in that document, which sets out fundamental law, about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk. There is nothing in that document about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.
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About as wholly speculative as the question of who leaked this decision is the history offered to support it. Alito’s opinion rests almost exclusively on a bizarre and impoverished historical analysis. “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text,” he argues, making this observation repeatedly. Roe, he writes, was “remarkably loose in its treatment of the constitutional text” and suffers from one error above all: “it held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned…”
Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor…
If a right isn’t mentioned explicitly in the Constitution, Alito argues, following a mode of reasoning known as the history test, then it can only become a right if it can be shown to be “deeply rooted in this Nation’s history and tradition.” As I have argued, the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then…
I read about 2/3 of draft until I just wouldn’t put myself through any more. It is so badly written, completely lacks any type of coherent reasoning, and its utter contempt for all things democratic (small d), it just proves that Ivy League law schools are probably not as good as everyone likes to believe. I mean, some clerk actually entered those words in to processor. As I have written here before, if this language stands, it’s not just abortion and women’s rights that will up for grabs, but literally any issue that comes to Court in the future.
IKR? This opinion is ludicrous. And sets a dangerous precedent for overturning any decision dealing with unenumerated rights based on law as it existed hundreds of years ago.
The Alito Way: Back to the future. Way, way, way back.
IKR = I Killed Reagan??
IKR = I know, right?
Thanks, my AIIDS is strong today.
“Alito was shocked to discover
that abortion is not included in the Constitutionwhere babies come from.”Fixed.
lol
A stork with one right wing?
According to the fourth amendment, citizens have “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
According to Alito’s clique the government has the right to take over control of a woman’s uterus and the purposes to which it might be put. How is that being “secure in their persons”?
Well said, Mr. Ruis!!!
“Warrants …describing the place to be searched, and the persons or things to be seized.”
If applied to minors seeking abortions, wouldn’t such warrants actually constitute child pornography?
Now that you mention it, by Alito’s reasoning, along with the implicit assumption that the Constitution applies to men, the absence of any specifically enumerated women’s rights implies clearly that women have specific rights. This sets grounds for reversal of every decision & law ever addressing women’s rights (incidentally, including the presence of women on the Supreme Court!).
It’s a breathtakingly revolutionary and reactionary decision. Something libertarian conservatives have longed for for a long, long time. It is revolutionary and was meant to be.
Alito, Chief Justice of The US Supreme Court Religious Majority (aka, The He-man Woman-haters’ Club)
And Justice Roberts (aka Alfalfa, aka CJINO — Chief Justice in name only) can’t decide whether he wants to be in or out of the Club
Oops – correction:
Meant “…implies clearly that women have NO specific rights,” but hopefully that was clear from context.🤭😅
And Amy Coney Barret is an Honarary He-man Woman Hater.
Those 55 white men also included in the US Constitution the ability to amend the original document they wrote. And on September 25, 1789, the First Congress of the United States proposed 12 amendments to the original Constitution and most if not all of those 55 white men that wrote the original Constitution were involved in adding those first amendments. But it is also apparent to me that todays Fascist Republican Party wants to roll back that history to September 24, 1789.
The era of women in Congress began on April 2, 1917, when Montana’s Jeannette Rankin was sworn in as a Member of the House of Representatives. In August 1920, three months before the 1920 elections, the Nineteenth Amendment guaranteeing women the right to vote was added to the Constitution.
Since 1789 the Constitution has been amended 27 times; of those amendments, the first 10 are collectively known as the Bill of Rights and were certified on December 15, 1791.
Here’s a link to the summary of the 27 Amendments to the US Construction.
https://www.u-s-history.com/pages/h926.html
Amendment Ratified Description
1st
1791 Rights to Religion, Speech, Press, Assembly, Petition
2nd
1791 Right to Bear Arms
3rd
1791 Quartering of Soldiers
4th
1791 Search and Seizure
5th
1791 Grand Jury, Double Jeopardy, Self-Incrimination, Due Process
6th
1791 Rights of Accused in Criminal Prosecutions: Rights to Jury Trial, to Confront Opposing Witnesses and to Counsel
7th
1791 Jury Trial
8th
1791 Protections against Excessive Bail, Cruel and Unusual Punishment
9th
1791 Non-Enumerated Rights
10th
1791 Rights Reserved to States
11th
1795 Suits Against a State
12th
1804 Election of President and Vice-President
13th
1865 Abolition of Slavery and Involuntary Servitude
14th
1868 Protects rights against state infringements, defines citizenship, prohibits states from interfering with privileges and immunities, requires due process and equal protection, punishes states for denying vote, and disqualifies Confederate officials and debts
15th
1870 Voting Rights
16th
1913 Federal Income Tax
17th
1913 Popular Election of Senators
18th
1919 Prohibition
19th
1920 Women’s Right to Vote
20th
1933 Commencement of Presidential Term and Succession
21st
1933 Repeal of 18th Amendment (Prohibition)
22nd
1951 Two-Term Limitation on President
23rd
1961 District of Columbia Presidential Vote
24th
1964 Abolition of Poll Tax Requirement in Federal Elections
25th
1967 Presidential Vacancy, Disability and Inability
26th
1971 Right to Vote at Age 18
27th
1992 Congressional Compensation
Ninth Amendment: Non-enumerated rights.
Alito and his conservative colleagues should try reading that one. You know, being “originalists” and all.
The leaked decision ignores that amendment entirely.
I think what they really mean is that they subscribe to a literal reading of “Genesis (Old Testament)” when they say they are “Originalists”
From Genesis
“God created man in his own image, in the image of God created he him; male and female created he them.
And God blessed them, and God said unto them, **Be fruitful, and multiply, and replenish the earth, **”
It’s undoubtedly very hard to be an Originalist and conclude that abortion was part of God’s Constitution.
And there is no “ninth amendment” (or any others) to God’s Constitution.
Nor any means for making such an amendment.
God is not amenable to amendment.
God’s Constitution
God is not amendable
He simply isn’t bendable
And really not extendable
Although he is offendable
“God created man in his own image, in the image of God created he him; male and female created he them.
God was trans
God was trans
Cuz God was fans
Of girls and mans
In image plans
Should be “God is trans”
And yes, I know I am going to Hell if there is one, so I just pray there is not.
“Go to ??”
God must be pissed
If Hell don’t exist
Cuz where can He send
The ones who offend?
What would Jesus do?
Maybe He sends them to Texanistan or DeSantistan.
Or to Mitch McConnell’s place.
I’d rather be in Hell
I’d rather be in Hell
With Satan and his bite
Than be in Texas jail
From indicator light
https://en.wikipedia.org/wiki/Death_of_Sandra_Bland
A person would have to be insane to actually move there* of their own volition.
Texas, not Hell.
Whom to believe: Old God or New?
If Jesus is God
And God is Jesus
They’re hard to divide
If one’s to believe this
Let’s play “HISTORY TEST.”
Since abortion is barely mentioned in the Constitution, we need to look at historical/ traditional norms. For the first 75 years of our country’s existence, there were no laws at all about abortion, and it was commonplace. You can find antique ads for abortifacients with cute names implying improvement of women’s health. “Post-quickening” abortion began being banned in 1821—in half of the states [then 26] by 1840. [“Quickening” is when the mother can first feel the baby moving, i.e. at 16-24 wks.] Abortion was still a common practice in 1850, estimated at 15-35% of all pregnancies—about the same as the last half-century under Roe v Wade.
By 1900 abortion was criminalized as a felony in nearly all states, although some had exceptions for preserving the life of the mother, or for rape/ incest. [Nevertheless, they were available: in the 1930’s, some 800k abortions were performed by licensed physicians annually.] It wasn’t until the 1960’s that a number of states began repealing those draconian laws, making abortion again available to mothers whose life/ health was threatened by pregnancy/ childbirth, or who had been impregnated by rape/ incest. [Roe v Wade decision followed in 1973.]
Summary/ Detail
-abortion laws non-existent 1776-1821… 54 years
-some abortion laws, but only “post-quickening” [similar to Roe v Wade];
-abortion common until 1850… add 29 years
-anti-abortion and anti-contraception laws promoted 1850-1870
-abortion gradually criminalized from 1870-1900: let’s split the difference—
add 15 years
-abortion criminalized nationally by 1900 with only some exceptions in some states
-8 of 50 [1/6] states de-criminalized abortion between 1967-1973
add 1 year
1973 Roe v Wade to present [2022]: abortion on demand at least for post-quickening phases
add 49 years
TOTAL: Since 1776, abortion has either been unregulated, or allowed post-quickening for 148 years of the 246 years of our country’s existence. That’s SIXTY PER CENT. LEGALIZED ABORTION [at least post-“quickening,” i.e., 16-24 wks] IS OUR COUNTRY’S HISTORICAL NORM.
I’m shocked that he’s shocked.
N.C.’s Lt. Governor, Mark Robinson (R) recently explained God’s view of women, which would preclude Kamala Harris from holding the position she has. Presumably, Robinson learned his lessons from the church that his mother took him to. It was his mother who sacrificed to enable his growth. When are women going to recognize the harm to equal rights caused by their decisions?
Less than a year before Robinson’s recent comments, the Lt. Gov. received public praise for his comments, “lambasting the transgender movement,” at the Catholicism.org site.
Brother Andre Marie posted, “It’s no secret that we here at St. Benedict Center are not very ‘ecumenical’….that being said, when a non-Catholic says what is true….the faithful Catholic must agree… so when N.C.’s …Lt. Gov….lambastes the transgender movement…I applaud him.”
And, would the Brother support the message about women?
(He wasn’t shocked.)
I put the word “shocked” in quotes because Alito only pretended to be shocked.
Anyone notice today that a man was arrested outside Justice K’s house today with a semi-automatic weapon, zip ties, duct tape, and a bunch of other gear? Told police he came from California to kill the Justice. Charged with attempted murder.