I agree with a lot of Peter Kirsanow’s piece this morning, with a caveat. Both he and John Leo peg Roe too narrowly. It’s not simply about abortion — although that’s a huge part of it. As I have argued here before, it is about the whole philosophy of Roe, which says there are no objective limitations on what the courts may impose on us via the pretense that the Constitution mandates it. That, and not abortion, is what those opposing the president’s judicial nominees are really fighting for.

If Roe got reversed tomorrow, we’d still have plenty of abortion — the matter would merely be turned over to the public to decide democratically at the state level, as it should always have been. Some small number of states would permit abortion on demand, a similar number might ban it outright, and I suspect the vast majority would make it more or less available with a greater or lesser degree of regulation — because that’s about where the American people are on this issue.

But undoing Roe would substantially undo the rationale for the Supreme Court inventing new rights out of whole cloth — inventions that effectively remove many issues from the democratic process, and thus permit a minority which is unsuccessful at the ballot box to impose its agenda by controlling the composition of the judiciary.