Dobbs Opinion: Alito Should Be Less Defensive about Unenumerated Rights

The most criticized portion of Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization is not one of his many arguments for overturning Roe v. Wade but his discussion of why overturning Roe does not require the Court to uproot more of its decisions on unenumerated rights — those not mentioned in the Constitution. This is, in fact, the weakest part of the draft opinion. If Alito can get four other justices to go along, he should be less defensive about the possibility that other constitutional falsehoods might be questioned in later cases. There is no need for the Dobbs majority to tear down other unenumerated rights, but there is also no need for it to construct implausible defenses for them.

Legally, it is telling that the critics have such a weak argument in favor of Roe that they have to deflect to discussing other unenumerated rights. Politically, as Ramesh Ponnuru and others have noted, it is a good sign for the pro-life movement that critics have immediately leapt from attacking the overturning of Roe to warning that the draft will result in worse things. If the defenders of legal abortion felt confident that ending Roe would trigger a massive popular backlash in their favor, they wouldn’t need to argue about same-sex or interracial marriage or sodomy laws or contraception.

The most criticized portion of Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization is not one of his many arguments for overturning Roe v. Wade but his discussion of why overturning Roe does not require the Court to uproot more of its decisions on unenumerated rights — those not mentioned in the Constitution. This is, in fact, the weakest part of the draft opinion. If Alito can get four other justices to go along, he should be less defensive about the possibility that other constitutional falsehoods might be questioned in later cases. There is no need for the Dobbs majority to tear down other unenumerated rights, but there is also no need for it to construct implausible defenses for them.

Legally, it is telling that the critics have such a weak argument in favor of Roe that they have to deflect to discussing other unenumerated rights. Politically, as Ramesh Ponnuru and others have noted, it is a good sign for the pro-life movement that critics have immediately leapt from attacking the overturning of Roe to warning that the draft will result in worse things. If the defenders of legal abortion felt confident that ending Roe would trigger a massive popular backlash in their favor, they wouldn’t need to argue about same-sex or interracial marriage or sodomy laws or contraception.