In a tweet yesterday, Steven Mazie, Supreme Court commentator for The Economist, wrote:

Criticize the judicial craft of Roe v. Wade all you like, but at least the ruling recognized, and tried to balance, two interests: fetal life and women’s autonomy. Alito’s draft lacks *any* reference to the latter. Women are erased from the calculus.

I tweeted a response to Mazie, but his brief tweet is wrong in so many revealing ways that I figured it might be worthwhile to expand my response.

One of the core criticisms of Roe is that it reads much more like a committee report on legislation than like a Supreme Court ruling on the meaning of the Constitution. As law professor John Hart Ely (who supported abortion rights as a matter of policy) famously put it, Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” (Emphasis in original.) So it’s an odd spin to present that deep flaw as a redeeming virtue.

It’s not even true, though, that Roe “recognized” the “interest[]” of “women’s autonomy.” As Linda Greenhouse recently observed (and as feminist critics of Roe have long complained), “[w]omen were largely absent from Roe,” which “was really a decision about the right of doctors to exercise their judgment about a patient’s best interest without risking prosecution and prison.”

Roe, to be sure, did ramble a lot about the human fetus, which it incoherently labeled as mere “potential life.” But its ruling is so one-sided in favor of abortion—including, as I’ve explained, through a “health” exception that has been widely read to authorize unlimited abortion all the way to childbirth—that it is difficult to take seriously as an effort at “balance.”

Contra Mazie, Justice Alito’s draft in Dobbs acknowledges the competing policy arguments over abortion, including arguments based on “autonomy.” Alito’s core point is that it’s not the role of the Court to decide abortion policy. Mazie’s tweet might mislead some readers into thinking that Alito’s draft has a lengthy excursus on embryology. But the draft in fact says as little about “fetal life” as it says about women’s autonomy. That’s because the “calculus” that Alito is engaged in is determining what the Constitution has to say, explicitly or implicitly, on the matter of abortion, not in setting abortion policy for the nation.

While I’m at it, I will note that Mazie has a follow-on tweet in which he complains that “Alito’s draft gives no guidance on whether there’s a potential constitutional challenge to bans that prohibit abortion even when a woman’s life is at stake.” But the Court granted certiorari on the question whether “all pre-viability prohibitions on elective abortions are unconstitutional” (emphasis added), and Mississippi law itself has a broad exception for “medical emergency” that no one challenged, so this case would be an odd vehicle for addressing such an issue. What’s more, no state has ever enacted an abortion ban that would override the life of the mother, and it seems farfetched that any state ever would: Even proponents of the argument for constitutional “personhood”—an argument that would require states to enact broad protections for the lives of unborn human beings—support, and indeed appear to insist on, a life-of-the-mother exception.