Friend of the blog David Garrow has a Dobbs oped in today's Wall Street Journal. Here is the gist:
The chief argues that what should be preserved from Roe and Casey is “a reasonable opportunity to choose” an abortion for any woman who wants one. “Roe adopted two distinct rules of constitutional law,” he writes. “One, that a woman has the right to choose to terminate a pregnancy; two, that such a right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb. The latter is obviously distinct from the former,” he writes, stressing that “there is nothing inherent in the right to choose that requires it to extend to viability . . . so long as a real choice is provided.”
The heart of the Alito majority is most visible in its assertion that Chief Justice Roberts’s “quest for a middle way would only put off the day when we would be forced to confront the question we now decide”—that the tsunami of state legislation challenging any partial preservation of the precedents would intensify, and “the turmoil wrought by Roe and Casey would be prolonged.”
In an important footnote, Justice Kavanaugh adds that “Casey adopted a special stare decisis principle with respect to Roe based on the idea of resolving the national controversy.” Thus, “the continued and significant opposition to Roe”—26 states asked for its overruling in Dobbs—“is relevant to assessing Casey on its own terms” and concluding that the Casey trio failed.
You can read the entire essay here. It is paywalled, but a one-time code is available for free access.
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