Why Alito forcefully rejected Roberts’s ‘measured course’ in the Dobbs decision

By a 6-3 vote, the Supreme Court
upheld Mississippi’s ban on abortions after 15 weeks of pregnancy
. But five of the justices, all of the Republican appointees except for Chief Justice John Roberts, went further in deciding Dobbs v. Jackson Women’s Health Organization, overturning the long-standing
Roe v. Wade
decision less than a year shy of its 50th anniversary.

Roe is, therefore, no longer a governing precedent. As Alito put it, it was an egregiously wrong decision that had been “on a collision course with the Constitution” from the moment the ink had dried on it.

Although Roberts did not explicitly disagree, he declined to join in this part of the ruling, instead arguing that he wanted to “take a more measured course.” Roberts would have preferred to settle the matter with the specific Mississippi law in question but then go no further. He wanted to overturn Roe’s “viability” standard (i.e., the notion that abortion could be regulated only after a fetus is viable) without ruling broadly on the merits of the rest of the Roe decision.

“I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis,” he wrote, noting that “that line never made any sense.” But, he went on, the striking of that bright-line rule does not require overturning Roe, and therefore, the court should not overturn it. “[T]hat is all I would say,” he wrote, “out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”

Alito addressed this legalistic argument by adding a few new paragraphs to the earlier leaked draft of his Dobbs ruling. First, he pointed out, the court can hardly avoid this problem — if it had tried to split the baby in this manner, it would have only postponed the inevitable for a short time before being dragged into the issue again. How many abortion cases does the
Supreme Court
want to take over the next three years, anyway?

“Some states have set deadlines for obtaining an abortion that are shorter than Mississippi’s,” Alito wrote. “If we held only that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all. The ‘measured course’ charted by the concurrence would be fraught with turmoil until the court answered the question that the concurrence seeks to defer.”

Moreover, Alito pointed out that the standard Roberts informally proposed, that perhaps
abortion
could be banned after a reasonable period has elapsed, would have forced the Supreme Court back into the position of drawing arbitrary lines that it never had any business drawing in the first place.

“For example, if the period required to give women a ‘reasonable’ opportunity to obtain an abortion were pegged, as the concurrence seems to suggest, at the point when a certain percentage of women make that choice, we would have to identify the relevant percentage,” Alito said. “It would also be necessary to explain what the concurrence means when it refers to ‘rare circumstances’ that might justify an exception.”

In my view, Roberts’s “compromise” approach would have been the worst of all worlds. It would have maintained an unacceptable ambiguity around abortion, tying the issue up in the courts for years more. Legislatures would have continued a game of blind man’s bluff, passing laws restricting abortion whose constitutionality they could not necessarily guarantee, then waging lengthy court battles that would eventually wind their way toward Washington to be decided by the Supreme Court.

Instead, both legislators and voters will now be empowered to make real decisions about abortion policy. If it’s an issue they care about, voters can select legislators they agree with on the issue. And those legislators can make laws without the artificial constraint of a constitutional right to abort hanging in the balance.

More importantly, the abolition of this right is important beyond just the legality of the procedure itself. It means that abortion need no longer be treated as a sacred cow when government funding goes out. States have previously run into all kinds of obstacles while seeking to defund abortion organizations. Now, the main obstacle has vanished to ending their free ride.

Democratic donors will doubtless want to fund organizations that will provide transportation and lodging for women seeking abortions from states that restrict or ban them. I would not go so far as to say, “Good for them,” but I would rather that those Democratic donors fund such organizations out of their own pockets than that they be allowed to fund them out of mine.