By Dave Andrusko
Not many of us are going to plow through all 213 pages of Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision that overturned Roe v. Wade and Casey. In the days and weeks to come, as time permits, we talk about some of the highlights of the opinion. We’ll begin today with Justice Samuel Alito’s painstaking rebuttal to the three dissenters.
Indeed, often, the best part of a decision are justices’ rebuttals to the arguments of their fellow justices. This one is no exception. In just a few pages, Justice Samuel Alito polishes off the dissents of justices Beyer, Sotomayor, and Kagan. He is largely reiterating points he had made in the draft opinion leaked to Politico. With all that time, it would have helped if the three dissenters had engaged them directly.
Point #1. No foundation.
“The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a“ ‘deeply rooted’” one, “‘in this Nation’s history and tradition.’” The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise”
Point #2, Mystery of Life passage, Part Two, meets bad history. In the 1992 Casey decision, the plurality invoked gibberish so untettered to the Constitution it was reminiscent of Justice Blackmun’s original Roe v. Wade decision. As Alito writes,
The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here. First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.”
So without support in history or relevant precedent, Roe’s reasoning cannot be defended even under the dissent’s proposed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted Roe’s interpretation. Under the doctrine of stare decisis, those precedents are entitled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not “‘an inexorable command.’” There are occasions when past decisions should be overruled, and as we will explain, this is one of them.
Point#3. Failure to realize that abortion is fundamentally different and that state’s have a legitimate interest in “potential life.”
The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance. That view is evident throughout the dissent.
Point #4. Dobbs resembles other decisions now seen as “infamous.”
“Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views.”
Justice Alito’s opinion is a delight to read. We’ll revisit more of Dobbs tomorrow.