Why Alito?

[Torie]

I don't agree with the premise of the OP. Alito probably got it as the senior justice to Thomas. The other 4 justices signed off on the opinion, and would have caused any offending language that they disliked to be removed. The decision was narrow in the sense that it was careful not to cast doubt on the other privacy/autonomy decisions.

What I wonder about is whether Roberts pushed hard on the idea that sure, if the decision just stuck down viability as where the line was drawn rather than get rid of the line entirely, sure, as per Alito's argument as to why the line needed to be erased now, further litigation would ensue as to where the line was to be drawn pre 15 weeks, if anywhere, but in the interim, Congress would have been put on notice that further and more severe and disruptive state balkanization was in the wings, with all the ensuing chaos, legal and otherwise, giving Congress time to pass a national law. [/i]  The think is, is limiting abortion on demand to the first 15 weeks is not very disruptive at all, at least in comparison to 0 weeks.

Give the public square adequate notice that a legal tsunami is coming down, so that it can take mitigatory action. The thing is, is that having abortion by right in the first trimester, and abortion thereafter only for medical necessity, is the most popular position of the voters, probably subscribed to by an absolute majority if the voters. Thus not giving Congress a chance to do that with prior notice, is simply a tragedy, and is going to cause great suffering to many that could have probably been avoided.

With a national law, not only would the negative consequences of Dobbs  have been greatly mitigated, but also the issue would have potentially had considerably more salience in the upcoming election, with bills probably voted on up or down in the interim. As it is, I don't think the issue will have that much salience, like it or not. That is what the polls show. So Alito's do it all now approach rather than a piecemeal approach with more litigation in that sense is both a prudential and a jurispudential fail. I wonder if Roberts made the argument with Kavanaugh at least. One wonders because Roberts did not make it in his concurrence. And that was a major omission on his part, and frankly surprising to me.