Roe's End and the Phony Doctrine of 'Potential Life'
On Friday, in its ruling overturning Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court promised that other family and privacy rights weren’t in danger. In Dobbs v. Jackson Women’s Health Organization, the Court decreed that states could once again ban abortion, since (1) “the Constitution makes no reference” to that subject and (2) contrary to Roe and Casey, no right to abortion “is implicitly protected by any constitutional provision.” But Justice Samuel Alito, author of the majority opinion, insisted that this reasoning wouldn’t affect other rights not enumerated in the Constitution, such as the right to use contraception or marry a person of the same sex.
This promise is worthless, because it’s based on a principle that’s also not in the Constitution: an asserted state interest in “potential life.”
The “potential life” principle isn’t central to the Court’s reasoning in Dobbs. But politically, it plays a crucial role by limiting the decision’s impact. The justices stipulate that Dobbs doesn’t apply to other privacy or family rights because abortion is distinctive: Unlike contraception or same-sex relationships, abortion destroys unborn life. Yet they never explain how unborn life, as a state interest, can be derived from the Constitution. Instead, each time they invoke the “potential life” principle, they cite Roe or Casey.
The bizarre position of the Dobbs Court, in short, is that every principle invented or dubiously inferred in Roe and Casey should be discarded, except the one principle that—in a remarkable political convenience—shields the Court from taking down the whole right to privacy.
https://www.thebulwark.com/roes-end-and-the-phony-doctrine-of-potential-life/
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