Josh Blackman: Sam Alito, Roe v. Wade, and Libertarians

Does returning decisions about abortion to the states increase liberty or shrink it?


The leaked draft of a Supreme Court opinion by Associate Justice Samuel Alito overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) has sent shock waves throughout America, with pro-choice and pro-life advocates scrambling to figure out what happens next if the right to an abortion is withdrawn at the federal level. "Roe was egregiously wrong from the start," wrote Alito in February. "We hold that Roe and Casey must be overruled."

While there's no question whether the document is authentic (Chief Justice John Roberts says it is), many questions remain. First and foremost among them: Does the draft, written up in response to Dobbs v. Jackson Women's Health Organization, a case challenging Mississippi's ban on abortions after 15 weeks, represent the current thinking of the Court's majority? We won't know for sure until a ruling is released sometime before the end of June. 

What's the best way to think about abortion rights, Roe v. Wade, and Alito's arguments from a libertarian perspective? I spoke with constitutional scholar Josh Blackman, a professor at South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and a blogger at The Volokh Conspiracy. Blackman is an unabashed admirer of Alito's draft, writing that it "meticulously dissects, and forcefully responds to, every conceivable position in favor of retaining Roe and Casey."

I'm not convinced about that at all and, in a wide-ranging conversation about the history of abortion and "fundamental rights," the changing nature of the Supreme Court, federalism, and partisan politics, we go deep on whether returning decisions about abortion to the states will increase or decrease individual liberty. This is an important discussion about a topic that will likely dominate politics for months to come.

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