Analysis: Roe v. Wade's foundation might be shaky but that doesn't mean it will fall
The Roe opinion wonders aloud if this bundle of rights is inferred from the 14th Amendment's concept of personal liberty, or the Ninth Amendment's reservation of rights to the people. Uncertainty about the legal source of those rights didn't stop the court from extending a new privacy right to a woman's decision to terminate her pregnancy.
Another criticism of Roe is that when unelected judges infer new fundamental rights from the shadows of other rights, judges override the local democratic process, and silence the voices of the voters in states such as Alabama. These arguments will appeal to justices such as Neil Gorsuch and Clarence Thomas, for whom the original meaning of the text of a statute is its only meaning.
The Alabama statute has been criticized for omitting exceptions to the ban in cases of rape or incest. That omission was a strategic one: By removing these exceptions, the Alabama law is grounded in the principle that a fertilized egg is a life. For those against abortion, a rape/incest exception is a logical inconsistency: Life is life, whether or not the child’s father was a rapist. The exemption tees up the argument for the Supreme Court: Roe v.
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