It should come as no surprise that Justice Alito is pro-life. To the best of my knowledge, he has never announced his personal views on the subject, but it’s a pretty clear inference from what we do know about him. In any case, he’s made no secret of his belief that states should be able to legally ban abortions.
So, there’s no reason to make him seen any more opposed to abortion than he is. Yet, many who should know better seem desperate to do so, and are basing that on anything they can find in the draft Dobbs opinion.
“Domestic Supply of Infants”
One commonly quoted example is that the Justices said they are overturning Roe to increase the “domestic supply of infants” available for adoption. That is entirely wrong. The quoted language does appear in the decision but in a footnote (footnote 48, on page 34) quoting a CDC report. In other words, Justice Alito didn’t write that expression. He didn’t use it the way it’s been portrayed, either: the footnote argues that pregnancy has little impact on women because a child put up for adoption is likely to find a good home. The problems with that reasoning should be obvious. Even so, it’s significantly different from what Alito has been accused of saying.
Incidentally, both sources in the last paragraph put the blame on Justice Barrett. Justice Barrett did argue that Safe Haven laws reduced the burden of unwanted pregnancies, and I still don’t think she should be on the Court, but that strikes me as unfair. We have no more reason to believe that Justice Barrett chose that language than that Justices Thomas, Gorsuch, or Kavanaugh did. At the time, it was also possible that Justice Barrett had signed on to a different opinion written by the Chief Justice.
“We do not question the motives of those who have opposed laws restricting abortions.”
At least some accounts of that quotation have (in passing) acknowledged the context. I can’t say the same of footnote 41 (page 30), which suggests that abortion proponents might be motivated by racism. At first glance, that seems disturbing. The missing context? It immediately follows the rejection of an argument, supposedly relied on by Jackson Women’s Health, that statutory abortion restrictions were based on discriminatory motivations. Justice Alito’s characterisation isn’t entirely accurate – that claim is part of a broader point about the history of abortion regulations and Jackson Women’s Health doesn’t refer to that part of the cited amicus brief – but he had some justification in responding. Other pro-choice groups, like the ACLU, have made similar assertions.
The Big Picture
More subjectively, I think it’s misleading to portray this as a judicial power grab. Roe was the exercise of judicial power, which Dobbs would undo. To be clear, that doesn’t necessarily make Roe bad or Dobbs good. Most Americans would agree with at least one of the Court’s recent restrictions on state authority, whether that be the authority to recognise only heterosexual marriage or to outlaw all possession of firearms. The Supreme Court certainly exercised its power when, less controversially, it struck down separate-but-equal laws and prohibited bans on interracial marriage.
Apropos of interracial marriage and the Supreme Court, misinformation isn’t limited to the Dobbs draft. I’ve seen at least one person (which I can’t find in my internet history) saying that a Republican Senator supported banning interracial marriage. That’s wrong: Senator Braun said that the states should be able to, not that they actually should, and quickly (albeit unconvincingly) walked that back. So far as I know, virtually nobody supports banning interracial marriage (although that hasn’t stopped some – including a Congressional Representative and the New York Times Editorial Board – from claiming otherwise). To give another example, a viral Tweet declared that Senator Cramer said he would sacrifice a mother to save a foetus; he didn’t.
These details might seem trivial. Surely, the consequences of overturning Roe are more important? Maybe so but the truth is never too small to be important. It’s on big issues that the tendency to lie, or simply to assume the worst, is greatest.
Legally Competent 