In fact, as Alito notes, “by the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” There is no right to an abortion in the Constitution, either in the text or implicit in any other rights that it confers.Īlito rejects this out of hand, finding that while the Due Process Clause of the 14 th Amendment “has been held to guarantee some rights that are not mentioned in the Constitution…any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”Ībortion is, of course, neither. Even the majority in Roe wasn’t sure where exactly this right might reside either “in the Fourteenth Amendment’s concept of personal liberty…as we feel it is, or…in the Ninth Amendment’s reservation of rights to the people.” There is no right to an abortion in the Constitution, either in the text or implicit in any other rights that it confers. It’s no surprise that this draft opinion was leaked in what appears to be a last-ditch effort to change a justice’s mind by summoning an angry mob to the courthouse steps: The Dobbs decision makes great law. “The Constitution makes no reference, 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,” writes Justice Samuel Alito in a 98-page opinion that is brilliant, powerful, and impossible to refute.įinding that “ Roe was egregiously wrong from the start,” that “its reasoning was exceptionally weak,” and the precedent that it set has “had damaging consequences,” Alito picks apart the unlawful usurpation of legislative authority the Roe court used to craft an abortion statute and demolishes the vapid 4 th and 14 th Amendment arguments the Roe court made to justify the creation of a right the Constitution plainly does not enumerate. Jackson Women’s Health leaked to Politico Monday night, a majority of justices has held that “Roe and Casey must be overruled. But apparently not for much longer: according to a draft report of the Court’s opinion in Dobbs v. Casey, it bizarrely confirmed that its judgement had been distorted by a concern for popular opinion, noting that “the Court’s legitimacy depends on making legally principled decisions” that are “sufficiently plausible to be accepted by the Nation.”Ī popular decision that appeals to the feelings is not necessarily a great or even good one, and for nearly 50 years America has suffered under the bad law Roe and Casey have made. When it was decided, the overwhelming interest of an increasingly libertine culture was the decriminalization of abortion, and the justices who comprised the Court’s majority allowed their feelings to trump any semblance of proper constitutional jurisprudence.ĭecades later, when the Court affirmed its Roe decision in Planned Parenthood v.
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