Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/45

Rh constitutional "right of personal privacy," id., at 152, but it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. See Whalen v. Roe, 429 U. S. 589, 599-600 (1977). Only the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield. See Pierce v. Society of Sisters, 268 U. S. 510 (1925) (right to send children to religious school); Meyer v. Nebraska, 262 U. S. 390 (1937) (right to have children receive German language instruction).

What remained was a handful of cases having something to do with marriage, Loving v. Virginia, 388 U. S. 1 (1967) (right to marry a person of a different race), or procreation, Skinner v. Oklahoma, 316 U. S. 535 (1942) (right not to be sterilized); Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives); Eisenstadt v. Baird, 405 U.S. 438 (1972) (same, for unmarried persons). But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed "potential life."

When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were "consistent with" the following: (1) "the relative weights of the respective interests involved," (2) "the lessons and examples of medical and legal history," (3) the"the [sic] lenity of the common law," and (4) "the demands of the profound problems of the present day." Id., at 165. Put aside the second and third factors, which were based on the Court's flawed account of history, and what remains are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might