Alito Versus Law And Science


Our legal system only works if we have impartial judges whose decisions are based on facts. Samuel Alito is not an impartial jurist. He doesn’t care about facts. In this, he is only the most obvious of the six right-wing members of SCOTUS.


Roe v. Wade, discussed here, stood as precedent for 50 years, until it was thrown out by the right-wingers. Each of the people who signed onto the opinion, and John Robert, who didn’t, swore that stare decisis is a crucial aspect of judicial legitimacy, and recognized that Roe was binding precedent. That was a deception.

One important goal of stare decisis is to create certainty and stability in social relations. The legal term is reliance. We don’t overturn precedent without good cause. We might overturn a precedent because it is doing more harm than good. Thus, reasonable people see the wisdom in overturning Plessy v. Ferguson, which upheld Jim Crow laws.

I do not think Roe v. Wade was wrongly decided, but even if I did, that’s not enough. If overturning it causes more harm than leaving it in place, it should stand. Otherwise, we are not a government of laws, but a government by the feelings of five members of SCOTUS.

In Dobbs v. Jackson Women’s Health Organization, Alito rips that principle to shreds in pursuit of his partisan ideology. He writes:

in this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

His justification for all these points is callous and absurd, but especially his rejection of reliance. In § III.E he explains that there are three kinds of reliance.

1. Areas of law requiring precise advance planning. This, of course, is not applicable.

2. Areas of concrete reliance. That’s not present in this case. The claims that women rely on Roe are “novel” and “intangible”, and it would be wrong to consider them.

That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.

That leads to impassioned arguments, he says, so who’s to say whether there’s any actual reliance. So what if there’s a hideous impact is on society and in particular on the lives of women? Those things are irrelevant in the austere legal world, lit by the incandescent power of the Judicial Intellect Of Sam Alito.

3. This ruling won’t affect other cases. He must think we’re stupid.


Alito uses the term “unborn human being” ten times in his opinion. Usually courts use neutral language, or the language of the parties. His choice of words is a signal about his beliefs. He thinks a human child, a separate person, is living in the womb, just waiting to be born. That’s not true. It’s a religious belief.

My thanks to commenter c-i-v-i-l for linking us to a peer-reviewed paper in Natural Sciences, Pseudo-embryology and personhood: How embryological pseudoscience helps structure the American abortion debate. The paper was written by a noted US embryologist, Scott Gilbert. I have the pleasure of knowing Professor Gilbert. The paper includes a review and explanation of six of the different views scientists hold regarding the onset of personhood.

1. Fertilization: the formation of a unique genome.

2. Gastrulation: the point of cellular division of the fertilized ovum at which the embryo can no longer form identical twins, but can only form one unique human person.

3. Emergence of the human EEG pattern pattern: the cerebral cortex begins to function.

4. Viability: the stage at which the embryo can survive outside the womb.

5. Birth.

In addition to these, Gilbert notes a sixth position taken by many scientists, that personhood is not a scientific category. The differences he describes between the state of the embryo at the five stages he lists show the problem.

Gilbert’s paper disposes of the notion that there is scientific consensus on the issue of personhood. He goes much farther in his analysis, explaining that the anti-abortion mob is creating a pseudo-science to justify their religious zealotry. He likens it to Eugenics which caused tremendous damage; it also seems like creationism.

He describes three myths that buttress this pseudo-science. One is th myth of the valiant sperm fighting its way on a perilous journey, racing to the waiting ovum, piercing it and filling it with new life. This is a story of masculine prowess: the male is the active force and the female is passive. It’s the myth of the journey of the hero as seen in the work of Joseph Campbell and others. He writes:

The female oviduct is not a passive racetrack, and the egg and its cumulus are active in attracting sperm and exciting them to swim faster. Although the sperm needs its propulsion to pass through the cumulus cells and extracellular covering that surround the egg, it does not bore through, drill through, or penetrate the egg, itself. Rather, when the sperm finds the egg, it lies next to it, spooning, and then the membranes of the sperm and egg melt together, and the two become one.

This is a beautiful and powerful picture: two human bodies working together to achieve new life. Alito deals with the beauty and complexity Gilbert outlines in his paper by claiming judges can’t solve the problem. His solution is to hand the decision to state governments. He knows full well that many of them don’t care about reality any more than he does, and that they will take away the liberty of the majority. He doesn’t care.

Partisan hackery

It’s easy to see that Alito is a partisan hack by reading his opinions and checking his voting record. In the face of his record, he refused to recuse from the Trump immunity case and the January 6 criminal case on the hilarious grounds that no one could think him anything but the soul of impartiality.

Journalist Lauren Windsor recorded Alito at a recent private event. The video reinforces the perception that he is a partisan, not an impartial judge. He has a Manichean view of US politics: the struggle between the forces of godliness and the secular left. In a rambling response, he describes it as a battle one side or the other must win, though possibly there are ways to live together in peace, but some matters cannot be compromised.

But there wasn’t a battle until a tiny minority funded by billionaires used the state to impose their religion on an unwilling majority. The majority was forced to defend its liberty. Alito thinks this is fine.

His wife, Martha-Ann, is a Fox News Grandma fulminating about the outrage of the day, and stewing in grudges for decades. This recording,  also captured by Windsor, is awesome. As Joan Walsh puts it in The Nation, she lets her freak flag fly.

Alito is a crank. Martha-Ann is a crank. They crank together.

What can we do?

1. Please read the Gilbert paper I linked. If nothing else, it will shore up your faith in intelligent observation of our shared reality.

2. Call Senator Durbin’s Judiciary Committee and ask them what they’re doing to protect us from biased judges. It isn’t just Alito and the other SCOTUS rogues. Trump put dozens of right-wing cranks on the bench, including Aileen Cannon, Matthew Kacsmaryk, and James Ho.

57 replies
  1. Peterr says:

    I’m not seeing the link to Gilbert’s paper. Am I simply missing it, or did it not get inserted properly?

  2. earlofhuntingdon says:

    Alito’s purportedly analytical “five-factor” test is little more than his boot in the eye of the hundreds of millions of women and families who have relied on Roe since 1973. Each of his factors is blowing smoke into the eyes of history, reality, and the American public, to achieve his ideological end.

    The nature of the error, the quality of the reasoning, the workability of the rules, the “disruption” to the law, and the “absence” of “concrete reliance” all, in fact, work in the opposite way that Alito describes them. In addition to stare decisis, they strongly argue to retain Roe, the reliance issue most of all. That’s why he’s using those grounds to overturn a decision that should not have been overturned.

    Sam Alito is laughing at the societal norm he hates, and the overwhelming reasons to retain Roe, a decision he has wanted to overturn his entire career. His Catholic Church has been rejecting modernity since it was forced to relinquish its temporal power to the new Italian state in the 1870s. That’s a fight Sam Alito is dedicated to continuing.

  3. c-i-v-i-l says:

    Some of the issues that come up for me:

    Language matters. People often say “life begins at conception” when they have in mind something like “a human being’s life begins at conception” or “personhood begins at conception. With respect to the first of these, I take what Gilbert elsewhere calls the “metabolic view,” which is that life is continuous (since abiogenesis, billions of years ago): the egg and sperm are themselves alive, so life per se doesn’t begin when the zygote forms. I agree with the stance that personhood is not a biological construct; it’s a social / legal one. As Blackmun pointed out in Roe, there are a few references to “person(s)” in the Constitution, and none indicates a prenatal application. Of course, that could be changed via amendment. But if zygotes were people, then they’d have to be counted in the census; we could have the better part of a congressional district composed of a frozen embryo bank, and women/girls would all have to be tested for pregnancy during the years between their first menses and menopause, and perhaps even have to have ultrasounds, to rule twins/triplets/… in or out. I also don’t consider “human being” to be a synonym for “person”; for example, when brain death occurs, the person has legally died, even though the human being may be kept alive on life support (this combination is what enables beating-heart organ donation). But, maybe there’s better language for making these distinctions; if anyone has suggestions, I’m interested.

    It’s estimated that 30-70% of all embryos die prior to implantation, largely due to chromosomal abnormalities. If embryos are people, this is a public health crisis.

    Many people claim that a person’s life begins at conception because that’s when unique DNA is formed. But, they never seem to think about the fact that by birth, no one’s DNA is 100% identical, due to copy errors, microchimerism, and sometimes chimerism. There isn’t — and cannot be — a 1-to-1 correspondence between truly unique DNA and persons. Also, we speak of conjoined twins as two people, so there isn’t a 1-to-1 correspondence between bodies and people either.

    • Ed Walker says:

      The question of personhood is a fun game, but the legal side seems plain to me. Blackmun is correct about the Constitution. And as you point out, the ramifications of calling a fertilized egg a person are ridiculous.

      That said, I do like the onset of the EEG pattern, which, as Gilbert points out, has a nice symmetry with the end of life: a person is dead when the EEG stops, even if the heart keeps beating. That occurs at about the end of the second trimester, which also makes a nice symmetry with Blackmun’s holding in Roe.

      • c-i-v-i-l says:

        I feel conflicted about using the commencement of what Gilbert calls “a human EEG pattern” as the start of personhood. I do think that it’s our thinking brains that make us people, and the commencement of a human EEG pattern is where I personally draw a moral line for legal abortions (with some exceptions, e.g., for the mother’s life and health and for fetal anomalies that are inconsistent with life after birth). On the other hand, I think that birth is a better legal place to start personhood, in part because the fetus is not a separate organism.

        It’s not clear to me that “the loss of the human EEG (electroencephalogram) pattern determines the end of personhood,” as the legal definition of brain death / end of personhood also requires the permanent cessation of brainstem function. At least, my impression that by “human EEG pattern,” Gilbert is referring to cerebral activity, not brainstem activity, though I could be wrong about that (there is no freely accessible online version of reference 22, so I can’t check). If I’m correct, then the two situations are not quite symmetric, as the fetus’s brainstem becomes active earlier than when a human EEG pattern arises.

  4. earlofhuntingdon says:

    Excellent and accessible explanation by Gilbert. His reciprocity argument alone must set fundamentalists’ hair on fire, in that both sperm and egg and associated cells worth together to result in fertilization.

    It’s not a tale of Campbellesque heroic sperm fighting to become the first to fertilize a passive egg. As Gilbert describes it, sperm cannot find, let alone fertilize, an egg until they are changed after entry into the oviduct. Once the first sperm finds the egg, it does not pierce its membrane. Rather, their cell walls bind to each other, then dissolve, and the sperm’s contents become enveloped by the egg’s. If anything, the woman’s biology is in charge.

  5. earlofhuntingdon says:

    Gilbert refutes the dismissive, misogynistic analogy that a fetus in the womb is like “a tub of yogurt in your refrigerator.” “[A]natomically the fetus forms a part of the mother. It is not a tenant inside a vessel.” Rather, the two are a fused organism, dependent on and benefiting each other.

      • earlofhuntingdon says:

        It’s described in the Gilbert article. It’s short, about 12 pages of text, plus bibliography.

        His focus, naturally, is on physiological interdependence of two parts of a single organism, not a might-be-a-person inside a container.

        • c-i-v-i-l says:

          I’ve read the article (in fact, I’m the one who originally suggested it, in the comments of the prior post), and no, Gilbert doesn’t say that the mother depends on and benefits from the embryo/fetus.

        • earlofhuntingdon says:

          Gilbert discusses exactly that, primarily on pages 7-9. Excerpts:

          “[N]either the mother nor the fetus has a separately delineated anatomy, immune system, or physiology…. neither…is a traditional biological “individual.” … the fetus and the mother … [are] a single organism, the gravida, wherein the fetus is a component that is fully integrated anatomically and physiologically with the mother.”

          “[For example,] the bidirectional flow of fetal stem cells into the mother and maternal blood cells into the fetus appears to create “a permanent connection that contributes to the survival of both individuals….The fetus…is subject to the diet, stress levels, and other factors influencing the pregnant woman’s physiology…. [R]eciprocally, the fetus…changes her physiology, just as a well-functioning pancreas or ovary would.

          “Human placental lactogen also makes the gravida body less sensitive to the effects of insulin … leaving more glucose available in the pregnant woman’s bloodstream to nourish [her and] the fetus….Moreover, placental estrogen and progesterone contribute to the maternal tolerance of the fetus …. [meaning] the embryo helps control the uterine immune response.

        • c-i-v-i-l says:

          June 14, 2024 at 12:34 pm

          No, what you quoted is evidence for the fact that the mother and fetus are a single organism, which I never questioned. And I also don’t question that the fetus impacts the mother’s physiological well-being.

          I questioned your claim that the mother depends on and benefits from the embryo/fetus, which you’ve yet to address. For example, re: “a permanent connection that contributes to the survival of both individuals,” that contribution from the fetus only occurs because the woman is pregnant; but it does not make her dependent on the fetus, nor would I say that it benefits her, though it does benefit the mother-fetus organism.

      • EuroTark says:

        The benefit to the mother is getting an offspring, but on a more technical level you’re absolutely correct that the embryo is more of a parasite than symbiote.

      • earlofhuntingdon says:

        Typically, we’re arguing past each other. Gilbert’s work is the topic. His argument is that the gravida – mother and embryo/fetus – is a single organism from conception to birth. The two parts are interdependent, in that they convey mutual and reciprocal physiological, anatomical, and immunological benefits to each other during pregnancy.

        What happens before and after pregnancy is a separate topic. The biological processes Gilbert reports on inform but do not determine the woman’s choice to become or remain pregnant, or the individuation that exists before and after pregnancy.

        • c-i-v-i-l says:

          I don’t think that we’re talking past each other; I think we’re understanding each other and disagreeing.

          Yes, Gilbert’s article is the topic, and he does not say or imply that pregnancy provides “physiological, anatomical, and immunological benefits” to the mother, only that there are physiological, anatomical, and immunological changes. I suspect that you’re confusing changes that enable a successful pregnancy with benefits to the mother.

          I don’t know that “What happens before and after pregnancy is a separate topic.” After all, in assessing whether something is a benefit to the mother, I take as the baseline what her health was prior to becoming pregnant. What are you taking as the baseline?

          For example, where you quoted that placental lactogen has the effect of “leaving more glucose available in the pregnant woman’s bloodstream to nourish [her and] the fetus,” you’re the one who introduced the bracketed text; it doesn’t increase her nutrition relative to pre-pregnancy levels, and increased glucose also creates a risk of gestational diabetes. But maybe you’re using some other baseline. Or to take another example, the fetus gets its oxygen through the mother’s pulmonary and cardiovascular systems, so the fetus clearly benefits, as it would die otherwise, but I don’t know of any “mutual and reciprocal … benefits” to the mother’s pulmonary and cardiovascular systems.

        • c-i-v-i-l says:

          I’m always willing to change my mind in response to convincing evidence, and I asked you what you’re taking as the baseline because I’m trying to understand your thinking. But if you’re not inclined to answer and continue the exchange in order to come to a better shared understanding, so be it.

  6. Dave Russell says:

    As with many aspects of our lives, there is no objective definition of personhood. A person comes into being when we collectively decide that it is so. Here is my preliminary idea for a personhood standard:
    1. The materials to make a human, in whatever state of assembly, will be defined as a pre-person until one year after birth. A pre-person will have no rights or protections under the law.
    2. A person will come into existence one year after birth if and only if a qualified guardian signs a binding contract to raise the person to adulthood.

    • Rayne says:

      Your standard will not fly as it is unconstitutional.

      Article II, Sec. 1 reads “No Person except a natural born Citizen, or a Citizen of the United States” with regard to eligibility for president.

      14th Amendment reads “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

      Humans are persons once born according to the Constitution.

      • Dave Russell says:

        Thanks for taking the proposition semi-seriously.

        Good point. Several issues are resolved by the one-year wait, but the Constitution might have to be adjusted.

    • c-i-v-i-l says:

      I recognize that in some societies, infants aren’t considered to be persons at birth. But aside from Rayne’s point, why would you want to define “person” that way?

      • Dave Russell says:

        So, obviously the idea needs work.

        Partly, I was trying to highlight the problem of being super concerned with the unborn but less interested in what happens next. Perhaps I should have said that you have a year after birth to line up a qualified guardian or you remain forever undefended. Let the pro-birth folks step forward.

        • David Brooks says:

          I was mentally inserting “A modest proposal” before your original post. Satire does have a way of illuminating the implications of apparent certainties.

        • Rayne says:

          Right. Neonates are just snacks, babies are meals, so on. Don’t name them before harvest or you’ll get too attached.

        • earlofhuntingdon says:

          The irony that “pro-lifers” ignore what happens to baby and mother after birth, especially if they are people of color, has been mentioned here many times. Addressing it does not require defining the purported beginning of legal personhood, regardless of the purposes for which you might do that.

  7. P J Evans says:

    Personhood begins at birth, IMO, but potential human life begins at viability. It’s possible to die at any time between those two events, but it isn’t considered to be murder in most places.

    • c-i-v-i-l says:

      Over 2/3s of states have fetal homicide laws. There’s also a federal Unborn Victims of Violence Act.

    • EuroTark says:

      One of the issues is that which gestational age a fetus becomes viable isn’t clearly defined but depends on many factors, one of which is the quality of the available healthcare. The last few decades has seen marked improvements, and some places try to intervene as early as GW22, although GW24 is more common.

      It’s also worth noting that measuring gestational age isn’t an exact science either. There are two main methods; the oldest (and easiest) is counting from the first day of bleeding on the previous menstrual cycle. The modern approach is to take detailed ultrasound measurements and compare the fetal development to statistical norms and calculate and expected development, which is then converted back to the old method.

      The issue with the first method is easy to spot: Not all woman have reliable cycles, and some even manage get pregnant on the first ovulation. The second method’s fallabilites is harder to spot, but matters even more when we talk about using gestational age for abortions: Many fetal abnormalities will cause reduced growth. This can easily be spotted when looking at IVF pregnancies where the exact dates of fertilization and insertion is known.

  8. dopefish says:

    I wonder how many women will die needlessly each year in the US as a direct result of Dobbs. Too bad Alito and his fellow extremists can’t be held accountable.

    Such a small number of partisan hacks are doing such a large amount of harm, and there’s seemingly no mechanism to fix it right now. If Democrats win enough seats in November, Supreme Court reform needs to be on the agenda.

  9. Konny_2022 says:

    When I read

    Alito uses the term “unborn human being” ten times in his opinion. Usually courts use neutral language, or the language of the parties. His choice of words is a signal about his beliefs. He thinks a human child, a separate person, is living in the womb, just waiting to be born. That’s not true. It’s a religious belief.

    in the post above, I remembered that I had kept a link to an article in The Guardian, published after Dobbs and the first abhorrent state laws on abortion: “What a pregnancy actually looks like before10 weeks – in pictures.” Her is is:

    I wonder how Alito (or any other “pro lifer” for that matter) could see a mini-human being in the fetal tissue of the early weeks.

  10. Error Prone says:

    Folks – It is a policy question, not a scientific one. This is meandering toward a dead end.

    What is the ongoing abortion policy to be in our nation, piecemeal state by state, or nationally consistent, and then, what’s best?

    Roe had worked an answer, but norms of separation of powers has killed it’s value. There are two other branches.

    In a majority rule situation it appears the majority believes women should control their bodies, and that decisions between a patient and doctor most generally are not properly the concern of intermeddlers. Aside from some who can write prescriptions and abuse the power, it is hard to imagine where policy is not best to leave the private patient-medical caregiver relation non-public in terms of facts and actions, and range of decision. This touches the trans question. If somebody wants surgery and meds to alter consequences of an XX or XY genome, it surely is not my place to interfere. I expect it is a hard decision to reach, and not done on a whim, and I respect CHOICE.

    Personal autonomy not adversely impacting others in any real sense should govern.

    You make your choices how to run your life. Fine. You make choices for others based on some dogma, no. Not sane. Not respectful of others.

    Keeping it a policy question without drifting into the other side’s dogma, do that, and then reach a workable resolution. Roe did that. Roe got murdered.

    Ending with a semi-OT question – I searched a bit but could not find whether Alito, like Leonard Leo, is a Knight of Malta. I found him listed on one extended list somebody posted which did not seem to have any credible basis. Otherwise, nothing. Has anybody seen the question credibly answered online?

    • Rayne says:

      So you’re going to attribute to “norms of separation of powers” what is a minority-majority shift in ethics among SCOTUS jurists to ignore stare decisis — to pointedly lie during nomination hearings about stare decisis?

      You’re going to attribute to “norms of separation of powers” what is the same minority-majority shift away from federalism toward states’ rights, undermining universal human rights, including not only bodily autonomy but privacy? Undermining unenumerated rights?

      • Error Prone says:

        Yes. This is not the first bad Court. Periodic shifts in the Court are part of the actual system. Roosevelt looked at Court packing because the Court got in the way of his trying to lessen weight of the Depression. Taney Court. We’ve had bad Presidents. With this Court we at least have two other branches, (one now on a razor’s edge). The law is what a majority say it is, where some bemoaned activist judges in the Warren Court. Gerry Ford while in the House wanted to impeach Earl Warren. Winds blow and shift.

        • Ed Walker says:

          It would be easier to find a SCOTUS that wasn’t terrible. See, e.g., The Case Against The Supreme Court by Erwin Chemerinsky.

    • c-i-v-i-l says:

      Yes, it’s a policy question, but one that can/should be informed by relevant science and not misinformed by false beliefs about the relevant science. For example, viability — which clearly plays a role in Roe — is a scientific issue.

      • Error Prone says:

        Science is that a complete genome is formed well before viability. Policy is whether you set viability as somebody’s measure, while genome completion is somebody else’s. Roe picked a stage within a full pregnancy term as a Solomon’s choice. Why, at a guess, that time in history, did the Burgher Court do what the Warren Court did not? Feminism was not a front burner thing then. Providers needed guidance of what they could do when, without being charged with crime. Blackmun and the majority gave them reassurances via a plan.

        • earlofhuntingdon says:

          You’ll note from Gilbert’s article that having a single genome is not sufficient to determine “phenotype,’ colloquially, how an individual person turns out.

          The latter is heavily influenced by the environment before, during, and after pregnancy, in part by how those factors influence gene expression. An often-used example is identical twins, especially conjoined twins, who exhibit different personalities and other attributes.

          Anti-abortionists pick whatever criteria is most likely to prohibit or restrict abortion, because they are against it per se. Those who favor access to abortion as an essential part of maternal healthcare have a harder task. Typically, it’s choosing the point of viability – its attributes vary – independent of the womb.

  11. GSSH-FullyReduced says:

    Throughout US history, 94.8% of SCOTUS justices have been male. As billions of sperm with their Y-chromosome payloads charge towards one unfertilized egg, of course the legal definition of conception, let alone personhood, leaves the X-vote somewhat under counted.

  12. paulka123 says:

    I have a workable solution to the when does personhood begin-when the umbilical cord is cut. That protects the woman’s bodily autonomy and is something every person experiences.

  13. ToldainDarkwater says:

    I heard part of that recording of Justice Alito and Martha. I would agree that Martha sounded like a crank. I demur on Sam himself, though. He sounded more like he was “going along to get along”.

    Mind you, I despise his opinion in Dobbs, which is clearly a religiously based view pretending it isn’t. I think he has convinced himself that certain beliefs are facts, even though they aren’t.

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