Alito on Planned Parenthood v. Casey

A very pro-Alito Patterico cuts through the distortions on what Alito wrote in his dissent:

Nowhere did Judge Alito call for Roe v. Wade to be overruled. There is nothing inflammatory in his dissenting opinion, at all. It is simply a measured and well-written opinion that shows a careful analysis of precedent and a proper respect for the courts’ limited role in our constitutional structure.

Obviously, the Supreme Court reached a different view from that of Judge Alito, by a narrowly divided vote. This was the famous Casey decision which (among other things): 1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe’s trimester framework with a rule tied to viability.

But this does not mean that Judge Alito misread the relevant precedents regarding the scope of what is an “undue burden.” In fact, as Justice Scalia noted in dissent, “the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions.” In other words, Judge Alito read her earlier opinions correctly, but the Court
imposed a new, more restrictive standard in Casey. You can’t blame Judge Alito for that.

The bottom line is this: Judge Alito’s Casey dissent shows one thing, and one thing only: he is a careful judge and an adherent to the rule of law and a limited role for the courts. It is a dissent of which we can be proud. Don’t let the Democrats turn it into anything else.

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