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Why Roe Was Not Robust


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Power Line

Steven Hayward

May 9 2022

Consider the following language from Justice Alito’s draft opinion in the Dobbs case:


Wait—did I say this was in Justice Alito’s Dobbs draft opinion? I mis-spoke. These passages appear in Justice Blackmun’s opinion in Roe v. Wade.

In other words, the original Roe language, held sacred by the left, allowed for restrictions on abortion. So how did it become in practice a writ for unlimited abortion on demand? The “exception” for the preservation of the life and health of the mother became the loophole through which abortion became virtually unlimited, as it is not difficult to find a doctor who will “find” that the “mental health” of a woman requires an abortion. (This is one reason why many European nations, which have stricter abortion regulations than the new Mississippi law will impose, require a second opinion before an abortion is granted outside the first 14 weeks.) It was a short step from this loophole to the 1992 Casey decision’s new but undefined “undue burden” standard that made Roe’s ambiguous language obsolete.

To be sure, Blackmun’s complete opinion in Roe is incoherent, but I don’t think most people who hold Roe sacred know of these passages in Blackmun’s opinion exist.

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