WHAT CONSTITUTION?:

[T]he dissent's bottom line is clear: "Roe and Casey were correct." This is a bit surprising, since the reasoning in Roe has a poor reputation even among some progressives, including the late Justice Ginsburg. I expected the dissenters to focus mainly on the importance of following precedent, perhaps with their own justifications for the right to an abortion mixed in. In attempting to directly defend Roe, however, they re-affirm for me not only how indefensible that particular decision was, but also how imperious the whole "living Constitution" project continues to be.

The dissenters first say that Roe "struck a balance" between women's autonomy and the protection of fetal life. Leave aside that this "balance" allowed abortions in almost all cases in which women desired them. The more important question is why there should be any balance imposed by judges at all. The alleged virtue of Roe's "balance" is question-begging -- it pre-supposes a Constitutional right to abortion when that is the whole issue under debate.

As for where that right comes from, the dissent acknowledges that the ratifiers in 1868 did not understand the Fourteenth Amendment to confer any right to abortion. But that's okay, the dissent says, because there are "new societal understandings" that have developed since then, and the ratifiers would have wanted the judiciary to recognize new rights based on these new understandings.

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