“That line never made any sense,” Roberts said. Instead, he said, a woman’s “right” to abortion should “extend far enough to ensure a reasonable opportunity to choose.”
In other words, instead of determining abortion based on when an unborn baby can survive outside the womb, Roberts argued that it should be based on whether a woman has enough time to obtain an abortion after realizing that she is pregnant.
“The law at issue allows abortions up through fifteen weeks, providing an adequate opportunity to exercise the right Roe protects,” Roberts wrote, adding at another point that “there is nothing inherent in the right to choose that requires it to extend to viability or any other point, so long as a real choice is provided.”
While doing away with the viability standard, the court could have still recognized a woman’s “right” to abortion with Roe, he claimed.
“My point is that Roe adopted two distinct rules of constitutional law: one, that a woman has the right to choose to terminate a pregnancy; two, that such right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb,” he said.
Roberts described what he called the “clear path” to deciding Dobbs “correctly” without overturning Roe: “recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.”
Alito’s majority opinion responded to Roberts’ concurrence, saying it “would do exactly what it criticizes Roe for doing: pulling ‘out of thin air’ a test that ‘[n]o party or amicus asked the Court to adopt’.”
“The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach,” the majority opinion continued. “The concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’
“Nor does it propound any other theory that could show that the Constitution supports its new rule. And if the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all ‘reasonable’ women will have decided whether to seek an abortion.”
“The concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” the majority opinion responded. “The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.”