First off let me be plain, I am pro Choice on the issue of abortion. There are lots of arguments why but one I see too little of that to me is hugely determinative is that giving birth is life-threatening, particularly in the American health care system, especially so for people of color and poor economic resources. The decision to rick one’s life should only rest with the person whose life is being risked.

Alito’s leaked draft opinion is some 98 pages long and my summation of his argument will be both reductive and from a non-lawyer’s perspective. From what I can determine listening to sources both left and right his basic argument flows like this.

Abortion is not specifically named as a right in the constitution.

The constitution does protect right which are not specifically named. (The 9th Amendment.)

To determine if something is an unnamed right one looks to history and tradition as it was understood at the time of the 9th amendment and the 14th. (part of the legal dismantling of slavery following the civil war.)

In Alito’s view abortion was not part of the history and tradition of accepted rights in either the 18th or 19th centuries, therefor it could not be counted among the unnamed rights of the 9th amendment nor among the privileges and immunities of the 14th.

Given that Alito concludes that there is no right to abortion and at the time of the leak has persuaded four other conservative justices to agree to this reasoning, terminating, for the first time ever in American history, and individual right.

To me there are several philosophical troubles with this reasoning.

First it presumes that the unnamed rights of the constitution are a close set, limited in number, and restricted to only what could have been conceived of at the time by while male slavers. Rather than interpreting the galaxy of unnamed right to be an evolving set matching culture as it changed it is a static set but one without any definition to guide future person in that determination.

It relies upon reading minds, from a distance of more than two hundred years, of men who recognized no rights for women in self-determination to adjudicate the rights of people in the 21st century.

It presumes that the men who wrote and adopted the constitution were so limited in their minds and imagination that they were incapable of conceiving of rights not yet considered by history and tradition.

There is a school of thought, generally conservative, that rights are not granted by governments but rather recognized by them and that their true source is a divine power. But if you accept this theory on the source of rights then Alito’s opinion is even more insane. Alito is then saying though God, all knowing throughout all time, imbues people with rights he was incapable of granting rights fallen humans were unable to think of in 1789 or 1868.

In my opinion Alito conclusions, and the agreement of his fellow justices, is nothing more than highly motivated reasoning. This is something I have seen in my past time, tabletop gaming. A player has a predetermined conclusion that would benefit their game and suddenly the interpreting of rules becomes quite fluid and twisted logic is employed to arrive at the desired outcome. The conservatives want to overturn Roe and the method of getting there matters very little. As it has been said on one legal podcast the vibe is very much ‘Stare decisis is for suckers.’