The future of Roe, the court, and us


Justice Samuel A. Alito Jr.’s recently leaked draft opinion overruling Roe v. Wade has amplified the loss of credibility the Supreme Court has suffered as its approval rating erodes. It used to run as high as 65 percent, but now stands at just 40 percent, according to a recent Gallup Poll. Some people have observed that the court is not merely political or ideological, but is now partisan. A recent survey concluded that twice as many Americans want Roe to stand as do those who want to see it overruled.

While Alito’s draft has worsened the skepticism, it goes beyond politics, ideology, and partisanship. It begins with the statement that “abortion presents a profound moral issue which Americans hold sharply conflicting views [emphasis added].” He telegraphs that the issue poses less a legal or constitutional question than an ethical one. It is a matter of right and wrong.

 If abortion is a fundamental right, he argues, it must be explicitly written into the Constitution or “deeply rooted in this Nation’s history and tradition.” He finds it is neither. Instead, he focuses on morality, not law. “Roe was egregiously wrong [emphasis added] from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” which he does not identify, except to say it is a debatable issue. It is time to return the issue to state legislators, he says.

What is this about? The draft opinion says nothing about doctrines of interpretation like originalism and the living Constitution, that is, whether justices should interpret the Constitution’s provisions based on their original meaning or should view them from a contemporary perspective. Instead, it forces us to act as “moral” beings, as decided by elected representatives, to accept right and wrong as they define it.

Harvard Law Professor Adrian Vermeule recently explained this approach in the Atlantic magazine as “common-sense constitutionalism” or “moral constitutionalism.” As Vermeule put it, “it is now possible to imagine a substantive moral constitutionalism” that forces us to be “moral” individuals, as our leaders conceive morality, no matter how we individually feel.

It is, Vermeule says, an “illiberal” approach, which is inherently undemocratic and authoritarian. While Alito does not cite Vermeule, Justice Barrett has apparently bought into Vermeule’s ideas, and Alito’s draft echoes them.

According to this view, we will be forced to live a moral life. Vermeule says this achieves “the common good,” and only elected officials will know how to make us moral beings. We will have “respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to ‘legislate morality.’”

He does not want “to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event),” but he sees that this will “ensure that the ruler has the power needed to rule well.” Are we certain our leaders will “rule well”? Look to our history.

State representatives, according to Alito, will create the moral environment for us to live, well, the way they want us to live. This is hardly democratic. Is this what we want?

If, as reported, Alito was joined by four other justices, including the three newest Trump-nominated justices, did any of the three mislead the Senate Judiciary Committee when asked about Roe? All three — Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett — expressed support for precedent, the legal principle of stare decisis, which means that most of the time judges stand by decisions previously made, such as the 1973 Roe decision.

As just one example, and there are several others, in 2017, Gorsuch said, “I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed. A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

However, these justices clearly signaled their distaste for Roe by their questions when the court discussed the case that may overrule it: Dobbs v. Jackson Women’s Health Organization. Kavanaugh, for example, asked, “Why should this court be the arbiter, rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Gorsuch and Barrett reflected the same sentiment.

They have all now seemingly bought into the ideas underlying moral constitutionalism. No matter that Alito clearly focused only on abortion, and said his decision was narrowly drawn only to deal with it: At stake are all other court-discovered fundamental rights that are not explicitly protected in the Constitution, or are not “deeply rooted in this Nation’s history and tradition.” Alito says that they do not “involve the critical moral question posed by abortion,” namely the killing of a fetus.

But he cited them, which should make us wary about their future: the right of interracial couples to marry (Loving v. Virginia, 1967); the right to privacy (Griswold v. Connecticut, 1965); the rights of parents to raise their children as they please (Pierce v. Society of Sisters, 1925, and Meyer v. Nebraska, 1923); the right to procreate (Skinner v. Oklahoma, 1942); the right of adults to engage in consensual sexual activity in private (Lawrence v. Texas, 2003); and the right of same-sex couples to marry (Obergefell v. Hodges, 2015).

Do we want our state representatives to be some sort of enlightened or benevolent despots to tell us how to live our lives when it comes to these issues? Think about it.


Jack Fruchtman lives in Aquinnah. The second edition of his “American Constitutional History” was published in March.


  1. It sure is SAD that so many women are forced to get pregnant and have children. If only there were a way to prevent pregnancy.

    • 100% of pregnancies are caused by men ejaculating themselves into women. How about forced vasectomies at birth? They’re reversible upon marriage. That’s invasive and depraved you say? How about forcing a 12 year old to birth her father’s rape baby? Or forcing a woman with an ectopic pregnancy to bleed to death because a bunch of imbeciles passed a law making it a crime to remove an unviable fertilized egg from the fallopian tube. Or arresting a woman who has a miscarriage? This Roberts court is medieval and barbaric, as are these Republicans criminalizing women’s healthcare.

      • Ms Cooper your colorful and motley rant deals with the smallest exceptions and completely disregards the fact that most abortions are done as a convenience.

        • Do you really have so little regard for women that you believe it is “convenient” to go through an abortion?

        • Even if they are, as you say, a “convenience,” exactly why should the government be allowed into this very private, personal, and painful decision? What does the level of convenience have to do with it? Should it not be treated as a medical procedure, like so many other medical procedures? Where, exactly, is your objection, Mr Engelman? Just how does any of this affect you? If it’s religious, then there’s a real problem there because, despite what so many would like to believe, America is not a “Christian nation.” There’s more than one reason why the founders believed in separation of church and state. Some religions have no problem with abortion and they’re part of this country, too. Why should their beliefs be stepped on by someone else’s?
          For all these children that you want brought into the world, who is going to pay for early childhood programs so that they can get a healthy start in their education and socialization, provide daycare so that their mothers can be gainfully employed, teach young mothers about nutrition, pay for maternity/paternity leave?
          Put them up for adoption? There are states in this country where State funded agencies will not work with prospective parents unless they are Christian. The important words here are “state funded.“ No Jews need apply. Or Muslims.
          How many freedoms will be taken away while you sit back and watch, or perhaps cheer from the sidelines, until one day they come for yours?

          • Dana, you mean like pulling a tooth procedure? This is not about religion, it is about when one thinks it is a life in there. Your ”who is going to provide for them” argument is a red herring. We dont dispose of people because we cant look after them.

        • Andy –I have to say that you have outdid yourself with the double speak;
          First you say “Pregnancy is manifestly avoidable”
          I Guess you agree with this :
          “legitimate rape” rarely results in pregnancy due to a woman’s biological defences””. – Todd Akin — former republican representative from Missouri.
          And then this :
          “most pregnancies are simply a form of contraception.”Andrew Engelman -May 12 2022

          • Everything for the left is about abortion, they love it more than a fat kid loves cake. Treasury Secretary Yellen tells us that the economy grows if we have abortions. Who knew the key to a booming economy is abortion?!?! Why does anyone have kids at all? Just imagine how low inflation would be if every baby were aborted.

          • Don, looks like i was right about you not giving up your editorship. If you truly had given it up, you wouldn’t have felt the need to reply to my comments towards Albert. Whether your name was mentioned or not.
            As for journalistic awards, I think the best you can hope for is some old debts owed to you will be paid. But we all know they likelihood of that happening…

        • WRONG! Abortion is never a convenience, it is always an extreme inconvenience and often heartbreak to everyone concerned! Please educate yourself and develop some compassion and respect.

    • It is sad that so many women are raped.
      And must carry rapist seed for nine months.
      The joy it must bring.
      Being able to hold your rapist’s spawn in your arms, not just your reproductive port.

      • “reproductive port” That’s twice this week you’ve cracked me up ,Albert. My hot is off to you sit.

          • Jim, I thought we made up on that issue–
            I even resigned from my position as assistant editor.
            But shouldn’t you have put a period after “you” before you commanded Albert to sit ?
            Let’s have a little sense of humor, OK ?
            We all make typo’s ..
            It will be interesting to see if Andy actually admits he made a mistake using the word ” pregnancies” instead of the word “abortions” in the comment above. He rarely admits to a mistake, no matter how egregious.
            Of course, he could have been stating the obvious, and just pointing out that pregnant women can’t get pregnant while they are already pregnant , and he is advocating for pregnant women to be pregnant as often as possible.
            I think I deserve some sort of journalistic award for using the word “pregnant” 5 times in one sentence.

    • On what basis do you say that “the fact that most abortions are done as a convenience”? You don’t even realize how much bias you carry.

  2. i do not think abortion can be opposed or defended, i do not believe i know anyone who thinks its a wonderful thing, just the responsible and prudent thing to have available if needed, as decided by those immediately responsible. Nothing ever can really be thrown away.

  3. Argumants that life begins at conception are missing the point. The legal argument concerns the right to privacy and those relevant Constitutional protections extending to abortion. That’s it. That’s what Roe vs Wade is. Everything else is a red herring. You can think it’s wrong, you can have religious and moral objections, but none of that is relevant to the landmark case.

  4. How about leaving medical decisions to the patient and her doctor? The point of legal abortion is that it is medically safe. Women are going to seek out abortions whether they are legal or not, as they have always done. If you don’t want an abortion don’t have one. But don’t imagine you can tell someone what is in their best interest. If you can’t trust a woman with a decision about her own body and her own life why do you think you can trust her with the life of a child? As for the argument that a fétus might grow up to cure cancer – making abortion illegal will impact mostly poor women since wealthy or middle class women can travel to someplace where abortion is legal. So realistically it is more likely that an unwanted child born into poverty will grow up to be a serial killer.

    It makes me very sad that having fought to legalise abortion in the ‘60s to protect ourselves, our friends, our sisters, and our mothers, we now have to fight the same fight to protect our daughters, nieces, and grand daughters. This is barbaric and symptomatic of the total lack of respect for the value of women’s lives.

  5. Men are treating women’s bodies as factories that they can control and manipulate like they try and do with everything else on this planet with no regard to the outcome of their actions. Men are ruining the planet it’s time to let women take over in many areas it would be better for everyone from what I can see!

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