I haven't read the concurrences or dissents yet, so I can't speak to that, but I want to bring up a point about Alito's opinion, because it lines up well with something I predicted in previous discussions about this case.
First, let me make something absolutely clear again, even though previous pleas have sometimes fallen on deaf ears. Nothing I'm about to say should be construed as either an endorsement or a critique of Alito's opinion. So far, I find his opinion well-reasoned and compelling, but that doesn't mean I agree with it. Once I get around to reading Roberts and the dissents, I suspect I will also be impressed with their arguments, but that doesn't mean I will agree with them. Sometimes, the beauty of the law in my eyes is the conflict between opposing arguments that both make sense, even though logic dictates that the correctness of one must necessarily imply the error of the other.
Having gotten that out of the way, I argued a couple of months ago that, while overturning
Roe has been the primary focus of the anti-abortion movement, it wasn't the only one, and it certainly wasn't the endpoint. The endpoint is fetal personhood in the form of federally recognized 14th Amendment protections for the unborn. That's what they want, and they've already started the process of trying to put this theory into legislative language in various states. Eventually, this question will find itself before the court. So, I was immediately drawn to a seemingly small, interesting phrasing in Alito's opinion.
Roe mentions what it calls "potential life" or "the potentiality for life" a dozen times. In every case it is part of a formulation in which the state has an interest in potential life that might compete - and thus need to be balanced against - the woman's right to privacy.
Casey mentions potential life many more times, but it follows
Roe's formulation. Potential life is a valid state interest that might stand in conflict with a woman's valid interest in her right to privacy.
Alito departs from this formulation ever so slightly, technically misrepresenting
Roe and
Casey in doing so:
Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” Miss. Code Ann. §41–41–191(4)(b). Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. (Emphasis mine)
See the difference? Whereas in
Roe and
Casey, the state had an interest in potential life, which must be balanced against the interests of the woman. In
Dobbs, the interest rests with the potential life itself, and it is the state's role to balance the interests of the woman against the interests of this potential life. In this reading, the only plausible understanding of the interest residing with the "potential life" is that the interest is that
of the fetus.
Now, read at face value, Alito's opinion does what it says: returns the power to make these types of policy decisions regarding abortion to the states. But in doing so, it also grants the fetus an express interest in this balancing act. That grant is exactly the foot in the door needed to pursue federally protected fetal personhood. Alito's reasoning might not support such a change, but his small shift in phrasing here has given them a big weapon in the fight.