The great weakness of Roe was the absence of a clear connection between abortion rights and any text in the Constitution or legislative history. The strengths of the opinion were its relevance to life in modern America and a plausible tie to a series of Supreme Court precedents involving state power and the family. The Dobbs opinion is Roe’s mirror image; its obvious shortcoming is its failure to adequately distinguish abortion from the other family law cases, including, but not limited to, Griswold. Saying that taking away life is a “moral” issue unlike any other may make sense to a lay person, but to a constitutional lawyer, it is a cry of desperation. In that sense, both the dissenters and Thomas are right; logically, it should be all or nothing.
Alito also tells us, in a lordly, condescending way, that his thought process is above politics. His unwillingness to follow the Thomas concurrence proves the untruth of that statement. The only reason to distinguish Dobbs from Griswold is the impact on public opinion.
Alito goes to a lot of trouble to try and demolish the argument in favor of the viability standard. This really was unnecessary to his opinion, which suggests that he wasn’t content to win a legal argument; he wanted to destroy viability as a legislative standard, too. That, in turn, tells us that his opinion was motivated more by his religious beliefs than by any purely legal reasoning.
Finally, for all of the length of the various opinions, the scope of disagreement is relatively small. The dissenters do not base their argument on the existence of abortion rights at the time the Fourteenth Amendment was adopted. There are really two issues in Dobbs: the first is whether rights allegedly protected by the Fourteenth Amendment were frozen in 1868 or can continue to evolve as attitudes and conditions change over time; and the second is whether the standards for disregarding stare decisis were met. Both of these issues will continue to plague the Court as the judicial counterrevolution continues.