Of the many infuriating features in Supreme Court Justice Samuel Alito’s draft decision overturning Roe v. Wade — the acerbic tone, the judicial overreach, and of course, the desolating substance of the ruling itself — perhaps the most galling is the contention that women’s lives have improved so dramatically in the 50 years since Roe legalized abortion that they no longer need their constitutional rights.
Near the middle of his 67-page decision, Alito blithely cites arguments by abortion opponents that unwanted pregnancies are no longer any particular burden for women because societal attitudes have changed. Bearing an unwanted child doesn’t place women at an economic disadvantage, this argument goes, because discrimination against pregnancy in the workplace and elsewhere is now forbidden, and because “the costs of medical care associated with pregnancy are covered by insurance or government assistance.” After all, Alito notes, the Affordable Care Act requires insurance plans to “cover certain essential health benefits, including maternity and newborn care.”
Hold up. Isn’t this the same Justice Alito who repeatedly voted to strike down the Affordable Care Act, calling it unconstitutional in at least three different cases before the Supreme Court? How opportune to commend the idea when it serves his position against abortion rights, but not when it might have provided health care to 35 million Americans!
Alito also nods approvingly that “[employee] leave for pregnancy and childbirth are now guaranteed by law in many cases,” so there’s no worry that having children may affect a woman’s earning power. But the justice fails to note that such leaves are usually unpaid: The United States is the only country among the 38 nations in the Organization for Economic Cooperation and Development without a paid family leave program. (The average benefit among the OECD countries is 50 weeks of paid leave.)
Despite Alito’s sunny claims, a study by the American Public Health Association found that women denied access to abortion were far more likely to experience poverty than those who did have access, and their economic disadvantages lasted for years.
Besides, Alito was singing a different tune about women’s workplace rights in 2007 when he wrote the opinion denying Lilly Ledbetter’s wage discrimination claim. Alito’s cramped interpretation of employment law essentially required victims of sex discrimination to file a complaint after every unfair paycheck. For his first legislative act as president, Barack Obama filed — and Congress passed — the Lilly Ledbetter Fair Pay Act, making it easier for working women to sue for pay equity.
Next, Alito tosses responsibility to women themselves for reasserting their rights, through lobbying their state legislatures, running for office, and, of course, voting. “Women are not without electoral or political power,” he notes drily. Never mind that 13 states already have trigger laws on the books that will go into effect immediately if Alito’s draft stands, banning abortion well before any political lobbying could make a difference.
Moreover, Alito conveniently neglects his own role in denying many Americans their “electoral power.” In 2013, Alito joined the 5-4 opinion in Shelby County v. Holder, the Supreme Court decision that lifted the protections of the Voting Rights Act in nine states with histories of racial discrimination at the polls. Since that decision, voter suppression laws have ballooned, with 17 states enacting 28 different laws restricting voting access last year alone.
The same women who would be most adversely affected by overturning Roe — poor women, younger women, Black and brown women — are the very ones whose voting rights are most often suppressed.
Icing the cake, Alito blames Roe v. Wade for the nation’s political divide. The 1973 decision, he writes, “sparked a national controversy that has embittered our political culture for a half-century.” As if the hateful rhetoric of some antiabortion forces, with their relentless harassment of women entering abortion clinics and their “hit lists” of doctors — not to mention their bombing of clinics, kidnappings, and murder — had no role in embittering the debate.
If women’s lives and opportunities have improved in the last 50 years, it is precisely because the Roe decision granted them the autonomy to realize their full selves, freeing them to become lawyers, run for office, rise through the corporate ranks, and become a social force demanding attention. That is how the country achieved family leave, protections against gender discrimination, universal health care, and the rest. If that makes it easier for some women to decide to give birth, that’s great too. That is the very essence of choice.
Renée Loth’s column appears regularly in the Globe.