Forget Alito. It was John Hart Ely’s work that really underpins Dobbs.
Dobbsthe possibility of a “privacy” right but countenances it only so long as it is attached to either the First or Fourth Amendment. He states, as though in shock, thatfound abortion rights “to spring from no fewer than five different constitutional provisions.” One might take the fact thatrelied on multiple constitutional provisions as proof of its overdetermination. But instead, Alito and Ely hold out the presence of inter-provision interpretation as evidence of intellectual weakness.
Yet by the early 1970s, criticism of the new jurisprudence had failed to gain serious traction—not only with respect to racial equality, but also when it came to privacy rights. Leading up to, the famous textualist Justice Hugo Black critiqued the justification for privacy rights used inprivacy
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