Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Center is a masterful account of why Roe v. Wade was wrong from the start and why it should be jettisoned. For liberals shocked by the prospective ruling, and for conservatives who thought it might never happen, it’s worth taking a look at Alito’s clear reasoning. “We hold that Roe and Casey must be overruled.” In 1973, the Court in Roe v. Wade imposed unrestricted abortion for any reason all the way up to viability (which was then roughly the end of the second trimester) and, under a malleable “health exception” in a companion case, even right up to birth. Never mind that the text of the Constitution makes no mention of any right to abortion. Never mind that abortion was a crime in every state at the time that the Fourteenth Amendment, the imagined source of the abortion right, was adopted in 1868.
In 1992, Planned Parenthood v. Casey botched the opportunity to overturn Roe. It instead reiterated that states could not prohibit abortion before viability, and it invented an “undue burden” standard to assess abortion regulations before viability. ................
