I expressed doubt that this may qualify as an argument against Dobbs because it doesn't offer any reason to think that Roe was grounded in the Constitution or that the Supreme Court has no good reason to overturn it.
The draft of Justice Samuel Alito’s majority opinion takes pains to emphasize that the Dobbs decision has no bearing on any other matters. Alito states at least three times that Dobbs is relevant only to Roe and the subsequent 1992 Casey decision, and is not to be understood as setting the predicate for a challenge to any other precedent. He writes:
None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.Whether these other cases were rightly decided or not, the fact that they may come under scrutiny is, in fact, no argument for why Roe should not have been reconsidered. If Roe is bad jurisprudence, as even many pro-choice scholars cited by Justice Alito in the leaked draft of his opinion have acknowledged it is, then it should be overturned regardless of whether it sparks subsequent reconsideration of other decisions.
As David Garrow writes in a column at the Wall Street Journal (paywall):
Justice Alito takes clear pleasure in citing by name the many liberal legal scholars who have dismissively criticized Roe’s reasoning, and he twice calls Roe’s constitutional discussion “exceptionally weak." That’s a conclusion with which even historians who fervently back abortion rights can’t cavil.The Supreme Court is not supposed to be a legislature. It's not supposed to be a political vehicle for gratifying the esires of the masses. It's role is to decide whether laws enacted by political bodies like legislatures conflict with the Constitution.
When its own judgments are found to be in conflict with the Constitution, as in Plessy v. Ferguson (1896) which upheld racially segregated public facilities, then those judgments should be overturned, as Plessy was in Brown v. Board of Eduxcation (1954).
The Roe decision was a usurpation of the role of the legislature. Citing only the most tenuous constitutional warrant, it established a right to an abortion, overruling the laws of many states, simply because many people wanted it.
The current Court has apparently decided that its predecessors exceeded their constitutional authority in establishing this right, that there was no basis in the Constitution for creating a right to abortion, that Roe was thus wrongly decided and should no longer be the law of the land.
If the leaked Dobbs decision turns out to be an accurate picture of where SCOTUS stands, the citizens of the fifty states will now decide whether, and to what extent, to permit abortion in their states. Pro-choice advocates insist that polls show the overwhelming majority of people want abortion to be legal, which, if true, should alleviate their concerns about overturning Roe since majorities of voters will decide to keep it legal.
The hysterical reaction on the left, however, belies their own confidence that their claim to have a strong majority on their side. Indeed, a Gallup poll taken last year showed that 32% of the people think abortion should be "always" legal, 19% thought it should never be legal, and 48% thought it should be sometimes legal.
In other words, 67% disapprove of the current status of abortion in this country which, in most states, allows abortion for any reason at any time up to birth.
Whatever the actual statistics may be, the current Court appears to be returning the decision as to whether and to what extent abortion should be legal to the people to decide. In a constitutional republic that's where it should've been all along.
