Samuel Alito’s draft majority ruling striking down Roe v Wade is everywhere in the news right now, for good reason. And in the midst of it, on page 24, he writes, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” And this idea, that abortion rights specifically are a post-1973, revolutionary innovation is wrong—clearly wrong, against the historical record, as so many scholars have spent this week pointing out. There is always a way to claim things do not have a long history. We call it ignoring the past. This rhetorical move on Alito’s part is not fact, not even so convenient as fiction—it is propaganda, it is the manipulation of the record to push an ideology. It is the same rhetorical trick as every defense of atrocity and bigotry that includes “he was a man of his time”—the same maneuver as arguing “don’t impose present day values on the past.” These are deliberate attempts to change the lines of engagement from the consequences of the behavior to the framework of the chronology. We can’t judge Jefferson for owning slaves, for example, “because he was a man of his time.” Is that to say that the right to freedom against oppression (and slavery) does not have deep roots in our Nation’s history and traditions?
Claiming human rights are revolutionary, that they have no deep history, that they are a novelty, is an attack on those rights. President Obama loved Martin Luther King Jr.’s succinct paraphrase of nineteenth-century abolitionist preacher Theodore Parker’s thoughts: “the arc of the moral universe is long, but it bends toward justice.” Yet reading Alito’s draft, we might be forgiven for disagreeing with the teleology—the draft explicitly puts other decisions into conversation, like Griswold, Skinner, Turner, and, what I immediately noticed, Loving v. Virginia—which guards the rights of those in interracial marriages. This is not the first time this year that we’ve have to worry about it. Indiana Senator Mike Braun, in the midst of a series of questions about the Supreme Court overturning precedents like Roe, suggested Loving should go back to the Supreme Court in March, and his attempted damage control afterwards was deeply unpersuasive. If it feels like the teleology of progress has collapsed, maybe it is because we kept convincing ourselves that it was, in fact, inevitable—that, much as in Francis Fukuyama’s “The End of History,” progress was constant.