Here is a link to an amicus brief filed by Professor Stephen Gilles. Gilles argues that the Court ought to overrule Roe and Casey. Gilles notes that this outcome would be clear under the Glucksberg Court’s approach to identifying fundamental rights. Glucksberg emphasized “history and tradition” and under such an approach there is no way to find a fundamental right to abortion. But, Gilles argues, the same result (no fundamental right to abortion) should apply under the approach the Court used in Obergefell, the Court’s same-sex marriage decision. The Obergefell approach emphasized “reasoned judgment.”
In his brief, Gilles explains that Roe and Casey are egregiously wrong by the standards of “reasoned judgment” described and applied in Obergefell. He concludes that the right to elective abortion has no foundation in either of the tests the Court has used to determine whether an asserted right is fundamental.