All Alito Really Wants Is To End Abortions Because He Doesn't Like Them (Part II of II)

1/ Can we talk about how problematic Alito’s logic is? Alito reaches back to the 17th c. English Common law to provide a precedent for his decision, but the 17th c. judgments he cites only made abortion a crime if it happened after the child “quickens” or moves (about 20 weeks). pic.twitter.com/VWnvN5XL9r

— Holly Brewer (@earlymodjustice) May 4, 2022

3/ Why was quickening so important? Many scholars & theologians then thought that quickening marked the possible point that the soul entered into the body of the fetus.

— Holly Brewer (@earlymodjustice) May 4, 2022

5/ So by claiming that he wants to return us to our 17th c. common law roots, then actually ignoring their guidelines, Alito is imposing his own standard of what constitutes life (or perhaps a conservative Catholic standard) that is not in fact any past precedent in US history.

— Holly Brewer (@earlymodjustice) May 4, 2022

That's the crux of the argument right there. Alito isn't even seriously trying to ground Dobbs in the law. Instead he's trying to shore up fragments against what he sees as society's (or at least the law's) ruin. That's not even vaguely sound legal reasoning. It's certainly much, much weaker than the reasoning criticized in Roe (and somewhat replaced by Casey, which is why no critic of abortion talks that much about Casey).

7/ *technical clarification. Quickening is the point, then as now, when a mother can begin to feel a fetus move. The term is still common in medical literature & in doctor/patient conversations.

— Holly Brewer (@earlymodjustice) May 4, 2022

Extra points for "The definition of reactionary."

Link to full draft. Relevant cases quoted and cited esp. pp. 16-20. Alito tries valiantly, but he just can’t square the circle. https://t.co/QlrNDZBkdZ

— Holly Brewer (@earlymodjustice) May 4, 2022

I could see my daughter's heartbeat on a sonogram monitor very shortly after we were sure we were pregnant. She didn't yet have muscles or bones to move, but she had a muscle that could beat. Did she already have a soul? Was she already alive? Yes, to the latter question; but she was also wholly dependent on her mother's womb for that life. Such measures are a terrible benchmark for determing when, and when not, an abortion can occur.

Roe rested it on the third trimester because the fetus could survive outside the womb at that point, with extraordinary medical technology available. None of that technology in 50 years has significantly changed the third trimester as the dividing line between viability inside and outside the womb.*  It's still a question of which interest society must hold paramount: the woman's, or the fetus's? In a nation with no national healthcare or universal access to publicly funded child care, we certainly, as a society, lose interest in both mother and child after birth. But before that, the fetus is paramount? What logic is that, pray tell?

*Yes, we do have magical technology which pushes back on that boundary.  But who has access to that technology?  It ain't all of us everywhere.