Constitutional Law
Jul. 13, 2022
Life is unique, abortion is not
Justice Alito could have argued that protecting fetal life is a compelling governmental interest that justifies banning abortion, even if there is a fundamental right at issue. That line of reasoning would overrule Roe and Casey, but would not require disclaiming the entire array of cases recognizing reproductive and same-sex rights.
Robert A. Schapiro
Robert A. Schapiro is Dean and C. Hugh Friedman Professor of Law at the University of San Diego School of Law.
Whatever might be true from a moral, philosophical, psychological or religious perspective, from a legal perspective, human life may be unique, but abortion is not. The failure to acknowledge this distinction underlies a major analytic problem in Justice Samuel Alito’s majority opinion for the United States Supreme Court in Dobbs v. Jackson Women’s Health.
In ending the constitutional protection for abortion, Dobbs will have a profound eff...
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