Supreme Court Justice Alito: ‘Constitution Makes No Reference to Abortion’

Supreme Court Justice Samuel Alito poses in Washington on April 23, 2021. Erin Schaff/Pool via Reuters

Supreme Court Justice Samuel Alito, in issuing an order Friday striking down Roe v. Wade, said that abortion presents a “profound moral question” and notes that the “Constitution makes no reference to abortion.”

“We end this opinion where we began. Abortion presents a profound moral question,” he wrote, in part, for the majority (pdf). “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority,” referring to the 1992 decision, Planned Parenthood v. Casey, which was also struck down Friday. “We now overrule those decisions and return that authority to the people and their elected representatives.”

“The Constitution,” he added, “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution.”

He further wrote: “The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three-quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’”

“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”

Dissent

Supreme Court Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented Friday in striking down the landmark Roe v. Wade ruling.

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent,” they wrote (pdf).

Elaborating further on their opinion, Breyer, Sotomayor, and Kagan wrote that until now the “court struck a balance” between “values and goals”

“Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of,” the three dissenting justices wrote. “A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”