THANKS, FEDERALIST SOCIETY!:

In Roe v. Wade and Planned Parenthood v. Casey, the Court located the right to an abortion in the due-process clause of the Fourteenth Amendment. This amendment prohibits any state from depriving "any person of life, liberty, or property, without due process of law." Prior courts have used this provision of the Constitution as the textual hook to protect not just procedural rights but unenumerated substantive rights, including rights to interracial marriage, same-sex marriage, and contraceptives.

In his draft opinion, Alito calls this approach "controversial" (after all, the due-process clause says nothing about substantive rights) but accepts the conceptual approach anyway. He notes that Court precedent has protected "two categories" of substantive rights.

The first category is the list of liberties guaranteed by the first eight amendments in the Bill of Rights. That category doesn't apply to abortion, which isn't mentioned in the Bill of Rights. The second category refers to those rights "deeply rooted in [our] history and tradition" and "essential to our Nation's 'scheme of ordered liberty.'"

Alito's opinion represents a thorough dismantling of the idea that--prior to Roe--abortion rights were rooted at all in American history and tradition, much less "deeply rooted." In fact, the deep roots that exist are of state regulation and prohibition of abortion. The draft opinion concludes with a 31-page appendix listing statutes that criminalized abortion in "all states of pregnancy" when the Fourteenth Amendment was ratified in 1868.

The draft opinion also rejects the idea that the right to an abortion is an "integral part of a broader, entrenched right." Alito distinguishes the long line of cases recognizing the rights to interracial marriage; to obtaining contraceptives; to engaging in private, consensual sexual acts; and to same-sex marriage by noting that abortion "destroys" what Roe and Casey call "potential life" and what the Mississippi law at issue in the current case "regards as the life of 'an unborn human being.'"

It's the impact on the unborn child that sets apart Dobbs, the case on which Alito wrote his draft opinion, from, say, Obergefell v. Hodges, the Court's ruling on same-sex unions. Gay marriage involves consenting adults. No unborn child consents to his or her own destruction.

The inherent weaknesses of Roe's approach have long been recognized even by the strongest defenders of abortion rights. In 1992, for example, Ruth Bader Ginsburg criticized Roe as a "breathtaking" precedent during a speech at New York University.

Her lecture addressed "measured third-branch decision making," and she spoke words that have proved remarkably prescient. "Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable," she said. And what was a prime example of a too-swiftly shaped doctrinal limb? Roe v. Wade. "A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day ... might have served to reduce rather than to fuel controversy."

Tweet   @brothersjudd