Two news items last week—one from Texas and the other from Washington, D.C.—confirm what was already pretty obvious to those who follow the Supreme Court: Justice Samuel Alito is catastrophically, and almost contemptuously, bad at his job. By this, I do not mean he reaches the wrong result; one can disagree with a judicial opinion but still consider it well-drafted and clear. Alito’s opinion in the 2022 decision that demolished any claim to a constitutional right to choose abortion is neither. It resembles nothing so much as the pattern left on a wall after a petulant child has hurled their spaghetti bowl against it.
The Texas news, of course, is the state’s Supreme Court’s brutal decision to block an abortion that Kate Cox, a 31-year-old Texan, and her physician believed medically necessary to spare Cox severe pain and suffering and serious risk to her ability to have more children. The fetus she was carrying was affected with a condition called Trisomy 18, a genetic defect that causes many fetuses to die in the woman’s uterus and leads to severe disability and early death for those born alive. An abortion would have spared the fetus agony and, according to the doctor, certain death. Cox, who already has two children, faces a bleak health outcome as well if she carries the fetus to term. Texas state district judge Maya Guerra Gamble on December 7 granted a temporary restraining order blocking the application of the Lone Star state’s abortion law so Cox could get her abortion:
The longer Ms. Cox stays pregnant, the greater the risks to her life. Ms. Cox has already been to three emergency rooms with severe cramping, diarrhea, and leaking unidentifiable fluid. If she is forced to continue this pregnancy, Ms. Cox is at a particularly high risk for gestational hypertension, gestational diabetes, fetal macrosomia, post-operative infections, anesthesia complications, uterine rupture, and hysterectomy, due to her two prior C-sections and underlying health conditions. If she is forced to carry this pregnancy to term, she will likely need a third section. Undergoing a third C-section would make subsequent pregnancies higher risk and make it less likely that Ms. Cox would be able to carry another child in the future.
In her order, Gamble wrote that Cox’s case met the Texas law’s provision for medical exemption when a doctor believes “in the exercise of reasonable medical judgment, the pregnant female . . . has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
In its appeal of the trial court’s order, Texas (in the person of Ken Paxton, its extremist attorney general) responded that the threat of diabetes, a ruptured uterus, and a forced hysterectomy do not meet the statutory standard and that, anyway, the physician’s statement that she “believes in good-faith” that the abortion is “medically recommended” does not conform to the precise language of the statute. The Texas Supreme Court (made up of elected justices) seized on this. “The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient,” the court primly noted; but, by not saying “reasonable medical judgment,” Cox’s doctor had botched her declaration, and so a young mother must risk these terrible outcomes.
The central issue in Cox v. Texas, as in the companion case, Zurawski v. Texas, brought by other women who had already been denied abortions, is that the statutory language is unclear, and the Texas Medical Board has not issued clarifying regulations. No doctor can know if Paxton (or the anti-abortion extremists the law allows to bring suits against doctors) will decide to agree with their “reasonable medical judgment.” This unclarity is a feature, not a bug: the law’s vague language is designed to have what lawyers call an in terrorem effect: it is a threat and is effective. That no agency of Texas government bothers to clarify it is no coincidence.
Cox, mercifully, left Texas and has apparently obtained the abortion she sought. But behind her stand an innumerable number of medically vulnerable women who do not have her resources—or whose cases cannot wait even the few days needed for judicial review. Neither Texas’s chief law enforcement officer nor its highest court sees anything significant in their plight—and under the U.S. Constitution, as interpreted by Alito, they do not need to.
And that brings us to the second news item: The New York Times‘s stunning expose, by Jodi Kantor and Adam Liptak, of the behind-the-scenes maneuvering that brought us Dobbs.
In the Times account, it’s hard to overemphasize the sheer cynicism of the Court’s conservative majority. First, the state of Mississippi sought review of a 2019 Fifth Circuit decision striking down a Mississippi statute that imposed a 15-week abortion ban. In soothing tones, Mississippi’s petition assured the Court that “the questions presented in this petition do not require the court to overturn Roe or Casey,” the latter case being the 1992 Supreme Court case that upheld Roe but allowed more restrictions on abortion. The Mississippi petition reached the Court in June 2020, and the Court’s conference repeatedly delayed considering it—until, oddly enough, soon after Justice Ruth Bader Ginsburg had died and had been replaced by Amy Coney Barrett. Then, on January 8, 2021, four conservative justices voted to accept the case, but at the behest of Kavanaugh and Barrett, the Court opted to withhold its announcement until May. Barrett had initially voted to “deny.” That didn’t matter—four votes are enough to grant review—but in May, she changed her vote and went with the program. The case was set for the following Term of Court in December 2021.
In July 2021, the state of Mississippi made an entirely new argument. Nothing short of a complete erasure of Roe would do, it argued. When the case was argued on December 1, 2021, both sides agreed that a 15-week ban was a flat violation of Roe, and at the Court’s secret conference, according to the Times, five Justices voted to overrule Roe and Casey. Chief Justice John Roberts tried to engineer a “compromise” opinion that would approve the Mississippi law but pretend that it complied with Roe and Casey—a signature Roberts move that Justice Antonin Scalia had once ridiculed as “faux judicial restraint”—but got no takers at the conference, meaning that the opinion overruling Roe would become the Court’s opinion.
In February 2022, Alito circulated a draft opinion overturning the Court’s 50 years of precedent. The other four in his camp agreed. In May, that draft was leaked to Politico—which, as Kantor and Liptak observe, had the probable effect of preventing any wavering Justice from crossing over to Roberts’s “restrained” position.
It may just be me, but I found the most shocking part of this terrible account that when they received the draft opinion in February 2022, none of the four sought changes to Alito’s draft. (Kantor and Liptak suggest that this is because the conservative majority had circulated the opinion previously without sharing it with the dissenters. This would be a mild and not unheard-of breach of protocol, but it underscores the role of secrecy in the unwinding of Roe.) They should have been screaming for changes because the Dobbs opinion is, not to put too fine a point on it, extraordinarily poor judicial product. It reads more like an opinion by Butthead, J. (“This sucks! Change it!”) than something a serious jurist, regardless of their position on Roe, would put their name on.
And that ties the opinion to the miserable excuse for law produced by the Texas Supreme Court. The Texas Justices considered only one question—Did Kate Cox’s doctor’s statement conform to the exact language of the Texas statute? That is by no means the only way the question could be posed. Consider this one: Does requiring this woman to risk her health, life, and fertility violate her fundamental rights as an American and a human being—that is, not her “right to an abortion,” but her right to take any reasonable measure to stay alive?
The problem is that nothing in Alito’s opinion, suggests this background question—Are there some risks a government cannot force a woman to take? Must a woman die, or risk death, if the legislature so decides? —is of any importance whatsoever. The state’s power over a woman’s reproduction has no limits at all, it seems. In his draft opinion, Alito wrote that there is “no support in American law for a constitutional right to obtain an abortion. Zero. None.” After the draft was released, the sullen-teen diction was omitted, but the message was the same: The constitution and the law provide no limit on abortion regulation. At no point does Alito use the phrase “life or health” to suggest that these must be weighed in the legal balance; at no point in the opinion do the words “rape or incest” apply as potential exceptions to state regulation. Though the opinion refers to the medical exemptions in Mississippi’s statute, it does not bother to parse the language or indicate what makes it acceptable—which would provide guidance to other legislatures and courts. Nor does it even say that the statute’s validity turns on the presence of an exception.
Dobbs was a “facial challenge,” meaning that the challengers claimed it could not constitutionally be applied to any woman, regardless of her health, age, family situation, or state of gestation. In other cases, the Court has suggested that “facial” requests should not be overinterpreted—that deciding against “facial” challengers could be qualified by suggesting that “as applied” challenges, such as Cox’s, could still produce a different result. In other words, a general ban on abortion would have to yield to a woman’s right to stay alive.
All Alito needed to state that this issue was not decided (which he managed to do when discussing same-sex marriage and contraceptive use), but he could not be bothered, and neither could the Texas Supreme Court. Indeed, some state judges have interpreted Dobbs to mean that there is no right to abortion, even to save a woman’s life. Consider Oklahoma Call for Reproductive Justice v. Drummond, which was decided last March by the Oklahoma Supreme Court. Though Oklahoma maintains an almost complete abortion ban, a majority of the state justices held that this did not oblige a woman to die rather than violate it: “We hold that the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”
But three justices dissented, arguing that because Alito did not mention a woman’s right to stay alive, neither the state nor the federal constitution provided one: “following Dobbs does not require this Court to find a state constitutional due process right to an abortion just because there was a limited exception to its illegality at statehood. If it did, the United States Supreme Court would have found such a right under the United States Constitution—or at least discussed that possibility in Dobbs. It did not.”
Any statute that requires a human being to die rather than violate it is not law at all; indeed, it doesn’t even deserve the term “tyranny.” The current Court’s Second Amendment decisions dictate that gun-control laws must be interpreted against a background right to self-defense against a deadly threat. But Alito’s opinion left open the possibility that these stand-your-ground principles somehow do not apply to pregnant women.
The truth is that Alito scribbled Dobbs without taking the ordinary level of care most of us exercise when writing a note for the milkman. Five Justices of the post-Trump Court had no problem with that.
If they had taken reasonable care, Cox might not be at the mercy of Alito’s sloppiness and the zealotry of Republican prosecutors eager to use his slipshod opinion against her and countless other women.
Author: Garrett Epps