There's a Glaring Weakness in Justice Alito's Case Against Roe v. Wade
It has been more than three weeks since the bombshell leak of a draft opinion in Dobbs v. Jackson Women’s Health Organization—the pending Supreme Court case that could end abortion rights in America as we know them. Justice Samuel Alito’s draft pronounces Roe v. Wade, the 1973 decision recognizing a constitutional right to terminate a pregnancy, “egregiously wrong from the start.”
Laced with contempt for a right that has stood for 49 years, the Dobbs draft overrules Roe along with the 1992 follow-on decision Planned Parenthood v. Casey. The weaknesses of the draft are many: a shockingly narrow view of constitutional rights; an insistence that killing “an unborn human being” poses a “critical moral question” with no acknowledgement that commandeering wombs might raise an ethical quandary, too; reasoning that, despite dubious disclaimers, puts other rights—including contraception, sexual intimacy, and marriage equality—at risk.
But another glaring weakness in the draft has received less attention: its specious assertion that Roe hasn’t really impacted Americans’ lives, so there’s no good reason for the court to stand by it. The jarring ways in which individuals’ lives and relationships will be disrupted if this half-century-old precedent falls—a factor the Justices call “reliance interests”—came up repeatedly in the December 1 oral argument, with Solicitor General Elizabeth Prelogar arguing that scrapping the right to abortion would upend “societal reliance and what this right has meant for further ensuring equality.” But it barely makes an appearance in Alito’s draft.
When Americans come to rely on a decision of the Supreme Court, the Justices have historically exercised special caution about abandoning it. As Justice Antonin Scalia once explained, “The doctrine of stare decisis protects the legitimate expectations of those who live under the law.” The idea that reliance considerations are central to stare decisis and indeed to the rule of law has a long pedigree. In 1815, the court explained that a prior ruling “should always be adhered to” when overruling it would upend contractual arrangements. In 2019, Justice Alito himself wrote a majority opinion sticking by a longstanding “chain of precedent linking dozens of cases over 170 years” in a case about the double jeopardy clause of the Fifth Amendment. But when it comes to erasing abortion rights, Alito’s draft breezily asserts that Roe has created no “concrete” reliance interests for Americans. And away it goes.
https://www.yahoo.com/news/theres-glaring-weakness-justice-alitos-152018129.html
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