On the Majority Opinion in Dobbs

Think of the Dobbs case as a cascading series of legal questions, starting with the most general and provocative to the most limited:

  1. Is a fetus a “person” entitled to protection under the Fourteenth Amendment?
  2. Is there a right to privacy, as held in Roe and Griswold?
  3. If so, does it include the right to an abortion, as held in Roe?
  4. Is that right unqualified during the first trimester?
  5. If Roe was improperly decided, should the Mississippi law still be overturned on the basis of societal reliance?

The majority will decide as follows, taking the questions in reverse order:

  1. All six “conservative” (only Roberts is a real conservative; the rest are reactionaries) justices will find that reliance is not an adequate basis to continue to follow Roe. Expect lots of references to Plessy v. Ferguson, the fact that Roe was controversial from the beginning, and the joys of federalism in the opinion. The last of these will be an embarrassment to reactionaries when they try to prohibit abortion on a national level. In footnotes and at the conclusion of the opinion, the Court addresses the political hack argument, to the satisfaction of no one.
  2. The six “conservatives” will all find that states can regulate abortion very strictly in the first trimester. On this point, expect arguments that both society and medicine have changed since Roe, thus justifying a different outcome. There will also be mention of the fact that most abortions occur before 15 weeks.
  3. Roberts breaks from his right-wing colleagues on this point; he tries to hold the decision to its facts and keep a shadow of Casey in place. The majority relies on history and constitutional text to hold that there is no federal constitutional right to an abortion–period. Roe is completely extinguished.
  4. Sensing the political dangers involved in overturning Griswold, the Court does not say that there is no right of privacy, although some of the concurring opinions suggest as much.
  5. The majority opinion says nothing about the personhood argument. Thomas and Alito reference it approvingly in passing in their concurring opinions.

My guess is that Barrett writes the majority opinion. What do the dissents say? Tune in tomorrow.