Why Roe was wrong to begin with

 Edward Whelan:

Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Center is a masterful account of why Roe v. Wade was wrong from the start and why it should be jettisoned. For liberals shocked by the prospective ruling, and for conservatives who thought it might never happen, it’s worth taking a look at Alito’s clear reasoning.

 
“We hold that Roe and Casey must be overruled.”

In 1973, the Court in Roe v. Wade imposed unrestricted abortion for any reason all the way up to viability (which was then roughly the end of the second trimester) and, under a malleable “health exception” in a companion case, even right up to birth. Never mind that the text of the Constitution makes no mention of any right to abortion. Never mind that abortion was a crime in every state at the time that the Fourteenth Amendment, the imagined source of the abortion right, was adopted in 1868.

In 1992, Planned Parenthood v. Casey botched the opportunity to overturn Roe. It instead reiterated that states could not prohibit abortion before viability, and it invented an “undue burden” standard to assess abortion regulations before viability.

In overruling Roe and Casey, the draft majority would deprive abortion of the special constitutional status that the Court wrongly conferred on it. Our elected representatives in the states and in Congress would rightly regain their authority to make abortion policy. Some states would continue to enact permissive abortion laws, and others would be able to put protective abortion laws into effect.
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Roe’s “reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
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It is hard to defend the original Roe and Casey decisions on a legal basis. Proponents of abortion usually give emotional reasons in defense of the decisions.