Written by Steven K. Green, Willamette University

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The leaked draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, which has sent shock waves across the United States, indicates that a majority of Supreme Court justices will likely overturn the constitutional right to an abortion granted in Roe v. Wade. Employing unusually harsh language, Alito declared that “Roe and Planned Parenthood v. Casey must be overruled” because of the decisions’ “abuse of judicial authority.”

“Roe was egregiously wrong from the start,” Alito wrote, and its “reasoning was exceptionally weak.”

He also asserted that neither abortion nor privacy is mentioned in the text of the Constitution, nor should they be considered to be “deeply rooted in the Nation’s history or traditions” so as to be worthy of protection.

As a professor of constitutional law who has taught about reproductive rights for more than 20 years, I argue that Alito’s legal reasoning leaves out several established constitutional principles also not mentioned in the text – such as separation of powers and executive privilege – as well as rights that conservatives hold near and dear like the right to marry and parental rights.

Alito’s claim that a right to an abortion “was entirely unknown in American law” until Roe is unfounded. Historically, abortion was not completely illegal, even in Puritan New England. The first abortion restrictions were enacted in the U.S. in the 1820s.

Even then, they generally outlawed abortions only after “quickening,” the early equivalence of fetal viability – the ability to survive outside the mother’s womb. Alito’s legal rationales aside, the legal debate over abortion is as much a religious dispute as it is a constitutional one.