“Roe’s defenders characterize the right to abortion as similar to the rights recognized in previous decisions on issues such as intimate sexual relations, contraception and marriage,” Judge Alito wrote, “but abortion is fundamentally different, as both Roe and Casey acknowledged. because it destroys what those decisions called ‘fetal life’ and what the law before us now describes as an ‘unborn human’.”

Justice Alito examined the precedents cited by Roe and Casey to justify their protection of abortion. These included interracial marriage, the right of prisoners to marry, the right to live with relatives, the right to make decisions about the education of the children and the right not to be sterilized without consent.

He also cited two “post-Casey decisions,” Obergefell and Lawrence v. Texas in 2003, which repealed a Texas law that made gay sex a crime.

Judge Alito, a careful draftsman, then seemed to distinguish between the two sets of decisions.

“None of the other decisions Roe and Casey cited addressed the critical moral question posed by abortion,” he wrote. “So they are unsuitable. They do not support the right to abortion, nor does it in any way undermine our conclusion that the Constitution does not grant them such a right.”

It is perhaps telling that that passage in the draft opinion is silent on whether its conclusion undermined the two post-Casey decisions on gay rights.

In general, Judge Alito wrote that he was wary of “attempts to justify abortion by invoking a broader right to autonomy”, saying that “the fundamental rights to illegal drug use, prostitution and the like could be granted” .

“None of these rights claim to be deeply rooted in history,” he added, a point that could be made about same-sex marriage.

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