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Altio's draft opinion is policy masquerading as constitutional law. At critical points in the argument, Alito abandons legal analysis for pure policy preference. At other points, his argument relies on weak evidence.
The most obvious resort to policy over constitutional analysis in Alito's opinion is where he tries to assure that overturning Roe will not impact other privacy rights, like interracial marriage.
Alito says abortion is different than other privacy rights because there is a fetal life involved. But that isn't a constitutional basis for distinguishing those other rights. It is not based on history & tradition or the nature of constitutional rights.
Many rights have negative consequences on third parties, including most obviously the Second Amendment right to keep and bear arms. The unwritten right to contraception can be said to have a similar third-party impact as abortion.
All the other privacy rights are clearly in jeopardy, despite Alito's assurance. Contraception, interracial marriage, sexual intimacy -- none of those rights could withstand Alito's history and tradition test that looks only to the law existing before the 14th amendment.
Alito also departs from standard constitutional practice by disregarding decades of precedent (over an above Roe) on due process. Obergefell, Lawrence, Harlan in Poe, early incorporation cases -- all said history is a guide but not the only basis for finding of a right.
Yet Alito says that a strictly historical understanding of liberty is the settled way of doing due process analysis. In fact, that approach was explicitly rejected in Obergefell and other cases.
Alito's argument about how the common law treated abortion is also remarkably weak. Nearly all the evidence that he cites shows that *pre-quickening* (about 16 weeks), abortion was not criminalized.
Alito cites one source for saying that person who unlawfully kills a fetus before quickening by giving the woman an elixir would be guilty of murder if the woman dies. Note what is missing: The historical source did NOT say that the delivery of an elixir that kills the fetus would be guilty of murder. No law that Alito cites says that.
Alito offers no history to support pre-quickening illegality, other than a seemingly offhand use of the word "unlawfully" by one source -- who wasn't even discussing abortion by choice.
Perhaps a good decision could be written overturning Roe & Casey, one based on strictly constitutional reasoning rather than hidden policy choices. But Alito hasn't written it. His analysis gives history and tradition a bad name.
Posted from my iPhone/Mobile device
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