"The Constitution does not confer a right to abortion.” Thus spake Justice Samuel Alito in his majority opinion concerning the June 24, 2022 U.S. Supreme Court Dobbs v. Jackson Women's Health Organization decision rescinding Roe v. Wade.

Alito is taking the originalist position on interpreting Constitutional law to the extreme. Standard originalist theory is that the Constitution should be interpreted according to the intention of the framers, insofar as we can infer it.

In the Dobbs decision, Alito goes a giant step further: If it doesn’t specify something in the Constitution, it isn’t supportable by law.

Alito might have gone a different direction. He might have insisted that life begins at conception, or life begins when there’s a heartbeat, or life begins at some other milestone in the embryonic development, thereby declaring that abortion is murder in the eyes of the Christian God by virtue of taking that life.

It seems Alito is clever enough to avoid that pitfall; after all, the First Amendment of the Constitution separates church and state (the establishment clause and the free exercise clause).

But has he fallen into a different trap? Possibly. Because it wasn’t until a century after the Constitution was penned that slavery was ended (Amendment 13, 1865) or that non-white males were given voting rights (#15, 1870). And women couldn’t vote until Amendment 19 was ratified in 1920.

In other words, there is a heck of a lot in what Americans refer to as “our rights” that the Constitution’s framers did not include. For example, interracial marriage was illegal until 1967 (Loving v. Virginia). Marriage equality for all citizens didn’t exist until 2015 (Obergefell v. Hodges). And there are many more gems we take for granted today, rights that might be considered “unconstitutional” according to the originalist viewpoint.

For example, while the framers of the Constitution didn’t specifically omit women from the enjoyment of rights accorded to white male property-owners, as recently as 1971 a woman was not allowed to do the following:

get a credit card in her own name

be legally protected from getting fired if she became pregnant

serve on a jury in many states

serve in the military on front lines

attend most ivy league colleges and universities

be legally protected from workplace harassment

refuse for any reason to have sex with her husband

pay the same as men for health insurance

obtain birth control without restrictions or spousal permission

obtain a legal, safe abortion

Clearly, the originalist approach to the Constitution is, at minimum, problematic. And when judges like Alito and the other SCOTUS justices who agreed with the Dobbs decision are so desperate to avoid the religion card that they fall back on the paper-thin logic Alito’s statement offers, we might as well be living in 1776 once more. And if the current bench of Supreme Court justices has their way, we will be.