After my spate of blog posts from Monday evening (1, 2, 3, 4), I took the time to read the apparent Dobbs draft opinion. It is a tour de force. Justice Alito meticulously dissects, and forcefully responds to, every conceivable position in favor of retaining Roe and Casey. I could teach an entire law school seminar class on this opinion. It touches on nearly every facet of constitutional law. Moreover, the opinion carefully addresses the concerns of other members of the majority. Alito cites Justice Gorsuch's book. Alito discusses safe harbor laws, which seemed important to Justice Barrett. Alito repeatedly cites Justice Kavanaugh's Ramos concurrence, and calls on returning the issue to the democratic process. This is an opinion designed to hold five, as the saying goes.
Will this opinion, or a version of it, ever see the light of day? Who knows. We are now in uncharted territory. For all we know, the Court issues a one sentence per curiam opinion overruling Roe, and remanding the case to the Fifth Circuit for further proceedings.
Still, I think the penultimate paragraph in Part IV provides the course of action going forward:
