There is no theory to justify a constitutional right to abortion, however absurd, that Linda Greenhouse will not attempt to package as unassailable truth. Back in 1970, she was selling Cyril Means Jr.’s historical fantasies, which even the legal team that won in Roe didn’t trust. More recently, she has pushed an establishment-clause argument for abortion rights that only one justice in U.S. history has ever embraced.
So while it’s not surprising that she hated Justice Alito’s draft opinion in Dobbs, what inventive theory she would use to rationalize her dudgeon was unpredictable. It turns out to be that Alito neglected “even to cite Justice Ginsburg’s landmark 1996 majority opinion in United States v. Virginia that rejected the exclusion of women from the state-supported Virginia Military Institute,” an opinion that supposedly casts abortion regulation into question.
You know who else has neglected to cite that case to support a constitutional right to abortion? Any justice who ever wrote for a majority. (Justice Ginsburg cited it in dissent in one abortion case, to support one of her subsidiary points.) It’s not clear why Alito is supposed to have been duty bound to tackle Greenhouse’s latest pet argument.
Who knows where she’ll discover a constitutional right to abortion hiding next? My money is on the emoluments clause.
More on Greenhouse’s latest effort here.
Update: I had forgotten that during her confirmation testimony, Ketanji Brown Jackson said she was not familiar with U.S. v. Virginia.