A useful rule of thumb for thinking about the Dobbs decision: If the dissenters did not bring up an argument against the majority opinion of Justice Samuel Alito, that argument probably lacks any merit. In the public debate after the decision, the mourners for Roe v. Wade have said that its reversal endangers women’s lives by making it potentially illegal for physicians to treat ectopic pregnancies. The three dissenters — with unlimited space, ample time, and considerable creativity to make any criticism that occurred to them or their clerks — steered clear of that claim.

Perhaps they saw its obvious flaws. Every U.S. law that prohibited abortion in the decades before Roe allowed it when needed to preserve a mother’s life. An infinitesimal number of people would forbid such medical treatment. Should any state try, a court might well be able to invalidate its law even after Dobbs. Alito’s opinion says that any state’s abortion law must have a “rational basis,” and one of its crucial premises is that a right to elective abortions is not “deeply rooted” in the nation’s history. Laws obstructing the treatment of life-threatening pregnancies would not be rational — Justice Brett Kavanaugh’s concurring opinion in Dobbs reminds us that Justice William Rehnquist said as much in his Roe dissent — and a freedom to provide such treatment is a deeply rooted tradition.

The dissenters — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — concentrate on five major arguments. They write that the justices in the majority present a selective history of abortion law; ignore the disfranchisement of women at the time of the 14th Amendment’s ratification; draw a specious distinction between abortion and other rights the Court has protected; flout precedent in a particularly alarming way; and turn a blind eye to the many harms their decision will work on women. Each of these points has been amplified by academics, journalists, and activists who favor a right to abortion. Each deserves more attention than the ectopic-pregnancy scaremongering. But each is deeply flawed.

The history

Much of Justice Harry Blackmun’s argument in Roe concerns history. He wrote that it was “doubtful” that abortion even late in pregnancy had ever been “firmly established” as a crime in common law, and that early American laws against abortion were designed to protect mothers from undergoing an unsafe procedure rather than to protect unborn children from being killed.

Even at the time of Roe, Blackmun’s historical account was dubious. It relied heavily on the work of an activist academic. An aide for the legal team that prevailed in that case wrote a memo about how much that academic had stretched the facts. Since Roe, the work has been thoroughly debunked, as Justice Alito notes.

In the weeks after Politico obtained and published an early version of Alito’s opinion on May 2, op-ed pages have often featured attempted takedowns of the justice’s historical claims. News stories have continued to mimic Blackmun’s motivated credulity, with the New York Times stating that several early statutes were “poison control” measures even though their texts clearly applied to all methods of abortion.

The Dobbs dissenters are more restrained, or perhaps cannier. They poke fun at Alito for going back to a 13th-century source (ignoring that Alito was responding to Blackmun, who had cited the same source). But they concede his main point: At the time the 14th Amendment was ratified, abortion at any stage of pregnancy was illegal in a large majority of states and was soon to be prohibited in others. In a parenthetical comment in a footnote, they also concede a minor point of his: Founding-era law treated abortion early in pregnancy as criminal in some instances. They argue that the amendment should be read to protect a right to abortion notwithstanding these conceded points.

The status of women in 1868

One reason the dissent discounts the laws of 1868 as evidence of the meaning of the amendment ratified that year: Women could not vote back then. Historian Jill Lepore sustained this note throughout her reaction to Alito’s draft in the New Yorker. But Alito notes that the laws against abortion persisted for decades after women won suffrage. In most cases, they persisted all the way until Roe came down. The dissent offers no answer.

While the dissenters don’t spell out exactly how they think the limited franchise of 1868 is relevant to Dobbs, presumably they do not mean that the amendment’s ratification is too morally compromised to bind Americans today. A stronger argument would be that the ratifiers placed into the law a principle with implications they were too blind to see. But to get where they want to go, the dissenters would have to show that the amendment has the specific implication that abortion must be legal. The fact that the ratifying era saw state after state tighten its laws against abortion may not preclude that showing, but it considerably raises the burden of proof. The dissenters neither acknowledge nor meet the burden.

They fail to meet it for a very simple reason: No amount of correction for past sexist attitudes, and no amount of regard for the equality between the sexes in rights, worth, and dignity, can place in the Constitution the proposition that unborn children have no right to life.

Related rights

Nearly all criticisms of Dobbs turn eventually to its treatment of Supreme Court precedents on contraception, consensual sexual activity among adults, and same-sex marriage. Alito repeatedly writes that he is making no adverse judgment about any of these rights (as Kavanaugh also writes). The dissenters discount this reassurance on the basis of one of the steps in Alito’s argument.

Alito suggests an outer limit to the rights that the 14th Amendment authorizes the Supreme Court to protect against the states: They must be enumerated in the constitutional text, part of a deeply rooted history in the U.S., or inextricable from rights in the first two categories. He then argues, persuasively, that a right to abortion can’t be justified in any of these ways.

The dissent notes that it’s no easier to justify the other precedents associated with the sexual revolution in any of these ways, and that Justice Thomas’s concurrence urges a reconsideration of those precedents. What the dissent misses is the significance of Alito’s repeated comments that none of the other precedents involve the government’s interest in protecting life: an interest that Roe, its successor cases, and the Dobbs dissent all acknowledge as legitimate.

Roe professed agnosticism about “the difficult question of when life begins” (its confused way of discussing when we owe respect to what is indisputably a living human organism). It then asserted that whenever “life begins,” the state’s undoubted interest in protecting “potential life” cannot outweigh the mother’s alleged right to have it killed until “viability,” and indeed that the Constitution somehow commands this rule. (The Court has also ruled that even after viability abortion must be allowed if needed to protect the health of the woman seeking it, sometimes suggesting that this exception must include emotional health.)

Some critics of Dobbs have claimed that it can make no legal difference that abortion involves life and death while contraception, etc., do not. Alito patiently explains that even Blackmun knew better, writing in Roe that abortion “is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation.” This basic difference makes a right to abortion conceptually distinct from the rights to privacy and autonomy the Court has elsewhere protected. The Court’s landmark 1965 decision on contraception invoked the historically respected privacy of the marital bedroom. A right to abortion cannot be inferred from a broader right in the same way.

In addition, Alito does not claim that whether a right is enumerated, deeply rooted in our history, or inseparable from other rights is the entirety of the needed analysis. He denies it. Even if the Supreme Court erred in these earlier decisions, each of them has force as a precedent, and just how much force has to be evaluated separately in each case. (Assuming that the Court ever gets a case that requires it to uphold or overturn the precedent in the first place, something that is extremely unlikely with respect to a right to contraception.) Thomas is the only justice who argues that the Court should disregard all clearly mistaken constitutional precedents. And whether to overrule a mistaken precedent should, one would think, turn in part on whether it undermines the government’s pursuit of an interest as weighty as the protection of life.

The treatment of precedent

Because Roe’s central claim that the Constitution requires legal abortion at least until viability is so hard to defend, its supporters have long placed great weight on the respect that precedents deserve. But as Justices Alito and Kavanaugh explain, no justice treats all precedents as sacrosanct.

So the dissent makes several attempts to portray the overturning of Roe as particularly wrongful. One is that Roe has been the law for many decades. Alito offers the obvious response that so had been Plessy v. Ferguson, the decision upholding racial segregation, when Brown v. Board of Education overruled it. The dissent parries that in the 50-plus years between those decisions, evidence accumulated that “separate but equal” was inherently unequal. “Changed facts” demanded changed law. No changed facts, for the dissenters, required reconsidering Roe.

But that argument opens another trap for the dissenters, because it suggests that the Court would have been wrong to overrule Plessy decades earlier. They certainly don’t want to say that. Their escape route is to say that quick overrulings of mistaken constitutional decisions have happened when individual justices changed their minds, not when they were replaced with other justices; and have expanded rather than shrunk rights.

A careful reader will see that the dissenters are not denying that the Court has ever eliminated a right it once granted. It clearly did just that when, in 1937, it narrowed the liberty of contract that it had recognized in 1897. The dissenters explain that there were “changed facts” in that instance, too, the passage of time having supposedly discredited laissez-faire economics.

What we’re left with is a doctrine of precedent composed entirely of debater’s points. The dissenters’ argument amounts to saying that the Court has diminished rights and has tossed out precedents without any prior change in social conditions, but has never done both at once. It’s a doctrine so specific that it bears the appearance of having been devised for the occasion. “There’s a first time for everything” is a sufficient answer. So is the observation that Roe was only the second time the Court has conjured up a right that conflicts with another right (the first instance was reversed by the Reconstruction Amendments).

The status of women today

The dissenting justices say that the majority doesn’t care about women’s lives “or about the suffering its decision will cause.” That the Court’s decision will destroy women’s life plans and reduce their ability “to participate fully and equally in the Nation’s political, social, and economic life.” That it will undermine many women’s sense of their own “identity” and “dignity.”

Alito’s response is not that the effects of abortion bans would be inconsequential but that the Supreme Court cannot make, and does not rightfully possess the power to make, an authoritative judgment about them. Legislators may reasonably differ in their expectations of how a proposed protection of unborn children will affect women’s careers and in how they weigh that consideration against the number of lives the protection will save. They may, consistent with the Constitution, take steps to minimize any adverse effect of the protection while remaining determined to offer it. They may reasonably take account of suffering on both sides of the ledger.

Scores of millions of American women find the notion that their dignity requires a right to procure abortion insulting and repulsive. Nothing in the Constitution requires the Supreme Court to declare which women are right about this matter, which means nothing authorizes it to do so either.

Alito’s majority opinion in Dobbs is faithful to the history it recounts, to the Constitution it seeks to interpret, and to the role the Constitution gives the justices. Roe was notorious for being poorly reasoned. Many supporters of unrestricted abortion ridiculed it. Nothing similar can be said of the decision that has finally, and rightly, excised it from our constitutional law.