The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization is a double disaster. First and foremost, overturning Roe v. Wade will have a devastating impact on the lives of Americans, especially women of childbearing age. Second, it is certain to be disparaged — even derided — by legal scholars and to result in a plunge in the court's already fragile public standing.
As many observers have noted since the draft decision leaked, a glaring problem with Justice Samuel A. Alito Jr.'s opinion is its singling out of abortion rights as a constitutional stepchild based on the fact that abortion was not protected at the founding, and indeed it was sometimes criminalized.
It's like shooting fish in a barrel to point out that this historical analysis is impossible to square with the court's recognition of other unenumerated and previously criminalized rights that the opinion insists it does not put at risk — for example, same-sex and interracial marriage, the use of contraception and engaging in homosexual sex.
