Well, sure, Thomas can submit a crayon drawing of an abortion monster eating a baby if he’s so inspired, but after half a century of claiming that this is bad law, don’t you expect that the justices will have some legal venting they want to do? Besides, if they don’t articulate their reasoning, it will come across as exactly the type of judicial activism that Roe is said to embody - a decision based solely on a desired result, as opposed to a legal determination derived from sound legal analysis.
I would think that the narrowest overturning would be to say that abortion is simply not within the zone of privacy protected by the constitution. But that invites a question as to how to parse this from other declarations that privacy includes family planning decisions - if your constitutional right to decide whether to have a child exists before intercourse (e.g. the government can’t outlaw contraception), then why does that decision end 16 weeks later, before a baby is born?
Now, the obvious answer is that a life was formed in the interim, and that the state has the right to intrude into privacy interests to protect that life. But that leads us into the declaration that life does indeed begin at conception, opening up interesting questions about when other legal rights may arise in a person’s existence.
There is another train of thought, of course: there is no privacy right inherent in the constitution. That, however, would upend lots of notions of what the government can indeed legislate - such as how to raise your kids.
I also readily concede that there may be other avenues of legal analysis that may be appropriate, or even persuasive.
From my limited review of oral arguments, I believe Justice Barrett has taken issue with this particular part of the Roe decision:
“ The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”
I believe that Barrett is skeptical of the idea that pregnancy, or single motherhood, is a burden on a woman.
Now, can you imagine any ramifications for that? Do insurance companies get to start challenging whether pregnancy is a medical condition requiring coverage? I don’t know.