Evan Bernick on the Dobbs Draft

Politico’s publication of a leaked draft of the Dobbs decision has turned the Internet upside-down, with rampant speculation about who the leaker was, whether the decision is final, and what will happen next if early-term abortion once again becomes a policy issue for states to decide rather than a right upheld by the Supreme Court.

I find the details of the leak uninteresting (except insofar as it impacts the legitimacy of the court). I am much more interested in how the five Justices voting in the majority arrived at their tentative opinion.

Evan Bernick, a law professor at North Illinois University’s College of Law, is an expert on Originalism the judicial philosophy on which the Dobbs decision is ostensibly based. Bernick joined me to dissent from this assumption. Instead, he argues, Alito’s decision stems from a judicial philosophy that seeks to “stop the Court from recognizing unenumerated rights.” Bernick believes in a more activistic judiciary when it comes to defending individual rights, as we discussed [the last time he was on my show.
We discussed the constitutional considerations behind both the Roe decision and the *Dobbs* reversal of an almost 50-year-old precedent. I’ll also ask Evan how the policy issue is likely to play out in the states, with progressive states becoming destinations for women seeking abortions.

Follow Evan on Twitter, and check out his book, The Original Meaning of the Fourteenth Amendment, co-authored with Randy Barnett.