Overturned: The Facts + a 360 View

“Critics say the Court’s 6-3 decision in Dobbs v. Jackson Women’s Health Organization is rule by unelected judges. But Roe was the real “exercise of raw judicial power,” as Justice Byron White put it in dissent in 1973. That’s when seven Justices claimed to find a constitutional right to abortion that is nowhere mentioned in the Constitution and had no history in American common law. The Court on Friday finally corrected its mistake, which has damaged the legitimacy of the Court and inflamed our politics for 49 years.

The Justices in the majority deserve credit for sticking with their convictions despite the leak of Justice Samuel Alito’s opinion in May. The leak was probably intended to create a furor to pressure the Justices to change their mind, and it has led to protests in front of their homes and even an apparent assassination attempt against Justice Brett Kavanaugh. By holding firm, they showed the Court can’t be intimidated…

A national ban may also be an unconstitutional intrusion on state police powers and federalism. Imposing the abortion values of Mississippi or Texas on all 50 states could prove to be as unpopular as New York or California trying to do the same for abortion rights.

One tragedy of Roe is that it pre-empted an abortion debate that was moving in the states a half century ago. That debate can now resume. Some states will ban it in most cases, while others like California may seek to pay for the abortions of women from other states.

It will take awhile, and more than one election, but we hope that eventually the public through its legislators will find a tolerable consensus, if not exactly common ground. That’s the best we can ask for in our imperfect republic, if we can keep it.”

“As the Left melts down over this decision, the public is being treated to every version of the slippery slope fallacy. Abortion absolutists, shaken by the lack of concern over the leaked draft of Dobbs v. Jackson Women's Health Organization, have argued that same-sex marriage and birth control will be taken away next. Although the basis for the former is somewhat flimsy, Roe did at least rest upon the earlier precedent of Griswold v. Connecticut and the fundamental idea that there exists some kind of “right to privacy,” reserved to the people under the Ninth Amendment, even if not explicitly stated in the Constitution.

But there are two problems with their argument. First, although Justice Potter Stewart’s dissent in Griswold remains as brilliant a refutation of that decision’s shoddy reasoning as it was in 1965, birth control’s legality is today a matter of political consensus beyond any dispute. Both parties support legal birth control.

Second, as Dobbs notes very clearly, abortion is different from all other privacy-related rights — “intimate sexual relations, contraception, and marriage” — simply because, unlike any of those things, abortion ends a human life and thus invokes a compelling state interest. On this basis, Alito draws what he calls “this critical distinction between the abortion right and other rights”...

Because abortion is certain to remain legal in many states for the foreseeable future, it is not enough just to ban it where such laws can pass. A truly pro-life response to this decision must include efforts to help mothers everywhere get through unexpected pregnancies. To create a culture of life, some combination of the state and civil society must act in concert to give mothers facing unexpected pregnancies a realistic choice other than placing their babies under the abortionist's knife. If they can do this, no one but the extremists who think abortion a positive good will miss Roe.”