The Rules for Abortion Are Still Rules—Not Loopholes

“We are supposed to be a neutral court of law,” Justice Samuel Alito told the relatively sparse audience at the Supreme Court’s final session Monday. “When it comes to ordinary legal rules … there is no justification for treating abortion cases differently from others.” Alito’s words were the opening of an angry bench dissent from the Court’s 5-3 decision in Whole Woman’s Health v. Hellerstedt, a blockbuster win for the forces of choice.

As a lawyer, I can sympathize with Alito’s sentiment. Good old “ordinary legal rules”! Life would be great if I could just go around muttering, “A waiver of assignment also operates as a waiver of sublease,” or “A standard-form contract is construed strictly against the drafter.” But abortion cases are , not legal, cases. Constitutional law operates (as it must) under its own rules. And even within the world of constitutional cases, abortion has always