Why Roe Was Not Robust

Consider the following language from Justice Alito’s draft opinion in the Dobbs case:

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. . .

No wonder the left is freaking out that the Supreme Court is poised to allow states to regulate abortion again.

Wait—did I say this was in Justice Alito’s Dobbs draft opinion? I mis-spoke. This passage appears in Justice Blackmun’s opinion in Roe v. Wade.

In other words, the original language in Roe, otherwise held sacred by the left, allowed for restrictions on abortion. So how did Roe become in practice a writ for unlimited abortion on demand? The “exception” for the preservation of the life and health of the mother became the loophole through which abortion became virtually unlimited, as it is not difficult to find a doctor who will “find” that the “mental health” of a woman requires an abortion. (This is one reason why many European nations, which have stricter abortion regulations than the new Mississippi law will impose, require a second opinion before an abortion is granted outside the first 14 weeks.) It was a short step from this loophole to the 1992 Casey decision’s new but undefined “undue burden” standard that made Roe’s ambiguous language obsolete.

To be sure, Blackmun’s complete opinion in Roe is incoherent, but I don’t think most people who hold Roe sacred know of these passages in Blackmun’s opinion exist.

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