“It seems to me that Roe and Griswold can be distinguished on grounds short of ‘constitutional personhood,’ but rather simply on the nature of the state interest involved. All the Court would have to do is recognize that a state legislature might have a reasonable belief that an unborn child is a human person in a moral sense to find that the protection of that person’s life is a state interest of the highest magnitude. Certainly if racial diversity in public post-secondary education is a compelling state interest, preventing the killing of those who might possibly be people should qualify. And if we apply strict scrutiny, then it would be a narrowly tailored approach to preventing the killing of those who might possibly be considered humans to ban that killing.
“Of course, in Casey, the Court moved away from the strict scrutiny standard in Roe to the ‘undue burden’ standard. However, whether a burden is ‘undue’ is obviously in the eye of the beholder (as all this discussion about Alito’s undue burden opinion in Casey should demonstrate), and if the Court were to take seriously the possibility that the unborn is a human person even in a moral sense, they would recognize that the burden on abortion imposed by, say, an outright abortion ban, could be said to be a ‘due’ burden.
“So the short answer to all of this is that it certainly would be possible to overrule Roe without even diminishing the supposed fundamental right it is founded on. The Court would just have to give a little more thought to the state interests that are supposed to weigh on the other side. Of course, that would be a slightly less satisfying result to those who think that the Court should step back from the penumbras and emanations concoction that gave rise to Griswold, et al. But there is a way to return abortion to the democratic sphere without upsetting the whole applecart (and without undercutting Lawrence too much, which Justice Kennedy is presumably attached to).
“All that being said, even if a Roe overruling undercuts the logic of Griswold, in real terms it is highly unlikely a state will pass a law that challenges either Griswold or Eisenstadt v. Baird, so your original point on that still holds.”
Good analysis, but I wonder if the justices will want to comment on the rationality of the belief that human fetuses are persons deserving of legal protection, which is hard to do without, in the process, commenting on the belief itself.