Politico rocked the nation with its recent exclusive and explosive publication of a mysteriously leaked copy of Justice Samuel Alito’s February 10, 2022, draft majority opinion in Dobbs v. Jackson Women’s Health Organization—the apparent decision by at least five Supreme Court Justices to uphold Mississippi’s law banning elective abortions after the fifteenth week of pregnancy. That opinion makes it likely that the Supreme Court will overturn Roe v. Wade, which crafted a constitutional right to an abortion forty-nine years ago in 1973. The defenders of the Dobbs opinion regard it as a triumph of originalism worthy of “three very enthusiastic cheers.” In sharp contrast, the progressive critics of the decision go to exquisite lengths to express their complete and utter contempt for a decision that according to the League of Women’s Voters “not only strips women and pregnant people of their personal autonomy but opens the door to erode more fundamental rights,” leading “to collective shock and outrage” by pro-choice advocates.

Clearly, with stakes this high it is important to set aside both exultation and despair in order to analyze the strengths and weaknesses of the Alito opinion. On the positive side, Alito’s opinion adopts a tone of workmanlike seriousness that is quite circumspect about overruling past precedents, and explicitly disclaims any intention to overrule any other precedent on either women’s or LBGTQ rights. Instead, it treats abortion  as “a unique act” that does not impact “in any way” Lawrence v. Texas (2003), dealing with private consensual sexual behavior, or Obergefell v. Hodges (2015), constitutionally protecting same-sex marriage. Instead, it articulates a two-stage argument that dismantles the establishment in Roe v. Wade and Planned Parenthood of Pennsylvania v. Casey of a constitutional right to abortion. The first part notes that abortion is not explicitly protected in the Constitution. The second part contends that Roe cannot be defended on some implied “substantive due process” grounds, because it does not meet the standard set out in the late Chief Justice William Rehnquist’s decision in Washington v. Glucksberg (1997), which refused to recognize any right to assisted suicide, namely that “any such right must be ‘deeply rooted in this Nation’s history and tradition’ . . . and ‘implicit in the concept of ordered liberty.’ ”

As Alito exhaustively documents, that standard cannot be met given the impressive array of common law and statutory criminal prohibitions of abortion in effect before the adoption of the Fourteenth Amendment in 1868, at the time of its adoption in 1868, or at any time thereafter. Yet at no point does Alito find any constitutional prohibition against the decriminalization of abortion. Instead, his chief complaint is that Roe “short-circuited the democratic process” that would otherwise lead to some political resolution in the same state legislatures that controlled the law on abortion before Roe. Recall that at the time of Roe, states had dramatically different abortion laws, from Texas’ very restrictive law (at issue in Roe) to New York’s 1970 law, which legalized abortion up through twenty-four weeks of pregnancy and whenever the mother’s life was in danger. Alito then shows that Roe’s legal reasoning “was exceedingly weak,” especially in light of its internal confusions, including its inability to justify different constitutional rules for each of the three trimesters of a pregnancy. Alito leveled the same criticism at Planned Parenthood of Southeastern Pa. v. Casey (1992), which affirmed Roe’s establishment of a right to abortion whenever state regulations impose an “undue burden on that right.” Hence, he struck down an opinion that could not be justified by the mere passage of time, and that had never gained political legitimacy during the past forty-nine years.