“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
So ends Supreme Court Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization. Americans really should take time to read the decision. It’s a masterpiece — accessible, logically seamless, historically grounded. And all the more devastating for its, well, judiciousness.
The pro-abortion rights movement much prefers quarrelling to argument. Rage and invective accompany their activism like bugles and drums. Pro-abortion rights protesters spent the last several weeks gathering at the Supreme Court and some of the justices’ homes, furiously chanting profanities and disturbing peaceful neighborhoods.
Nuns praying rosaries outside abortion clinics this ain’t.
Political journalists, almost all of them bemoaning Roe v. Wade’s demise, report that the left’s “energy” is spontaneous, righteous defiance. But it’s mostly calculated misdirection. Pro-abortion advocates deliberately skirt the substance of their position. They talk about “choice” and “reproductive rights,” or they verbally abuse pro-lifers. They avoid concrete realities like the law, the Constitution, the grisly practice itself and – God forbid – actual babies.
With good reason. For Team Roe’s platitudes and performative histrionics mask not only political extremism, but judicial bunk.
Roe cannot be seriously defended. It was, as the dissenting justices wrote at the time, never more than an “an exercise of raw judicial power.” Prominent pro-abortion rights legal scholars – including the late Justice Ruth Bader Ginsburg – have over the years admitted as much, calling Roe “difficult to justify,” a “barely coherent” “verbal smokescreen” that “is not constitutional law and gives almost no sense of an obligation to try to be.”
This is the Gibraltarian high ground Alito’s opinion commands: Dobbs isn’t about abortion; it’s about Roe.
The court is not being asked whether the industrialized slaughter of unborn children is good or bad, or whether it should be legalor illegal, but simply whether the text of the Constitution confers a fundamental right toit.
On that question, Roe was, in Alito’s words, “egregiously wrong from the start.” From there, Alito’s cool but relentless reasoning chews and shreds the Roe court’s “emanations” and “penumbras” and Casey’s reveries about “the mystery of life” like a woodchipper.
It reviews centuries of legislation and exhaustively documents “an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973.”
It exposes Roe’s reliance on ideologically biased, debunked historical research and Casey’s tortured, grasping failure to find constitutional grounding.
Anticipating his critics’ invariable flanking maneuver, Alito explicitly forswears any ambition to impose the justices’ values on the country: “Our decision is not based on any view about when a state should regard pre-natal life as having rights or legally cognizable interests.”
Alito’s holding bears this out. Roe may have struck down and rewritten abortion policies in all 50 states, but the would-be Dobbs court seeks only to “return the issue of abortion to the people’s elected representatives.”
That goes for states where “voters may believe that the abortion right should be even more extensive than the right Casey and Roe recognized” and states where “voters … may wish to impose tight restrictions based on their belief that destroys an ’unborn human being.’”
For 49 years, the Supreme Court has deprived the American people of our right to decide this issue for ourselves, to find consensus and legislate compromise. That is what Alito’s opinion would restore to us, and what pro-abortion rights politicians and activists really oppose: democracy.
At a time when both parties and all three branches of government routinely abuse their power, Alito’s even-handed deference to “we the people” is not simply humble, but heroic.
The Dobbs decision is most certainly a victory for the pro-life movement. But in truth it’s a victory for all Americans — born and unborn.
Kevin Roberts is president of The Heritage Foundation (heritage.org).