During an interview while promoting his new book, Justice Samuel Alito said that his opinion overturning abortion rights won’t lead to overturning same-sex marriage.

He may well be correct about that. But the reasoning he offered for his conclusion fails to confront the reality of the 2022 Dobbs ruling that overturned Roe v. Wade.

“There was a lot of reliance in various ways on the decision in Obergefell,” he told his interviewer, Jan Crawford of CBS News, referring to the 2015 ruling that approved same-sex marriage rights over the dissent of four justices, including Alito.

Crawford pointed out that people had long relied on Roe as settled law. But the GOP-appointed justice attempted to draw a distinction.

“After Obergefell, people of the same sex got married and entered into contracts … it was much more concrete,” Alito said in the interview. “Whereas with Roe, the argument was made that it had an effect on people’s ideas, women’s ideas about the kind of society that they were going to live in, that this would have an effect on the society. It was much more abstract than what would’ve been involved had we been asked to overrule Obergefell.”

But the Dobbs dissenters directly confronted the proposition that the rights at issue in that case were anything but concrete. In the rare joint dissent from now-retired Justice Stephen Breyer and Justices Sonia Sotomayor and Elena Kagan, the trio responded to the Alito-authored majority’s claim that the reliance interests on abortion rights “are too ‘intangible’ for the Court to consider.”

The dissenters said that for the majority to take that position “is to ignore as judges what we know as men and women.”

“The interests women have in Roe and Casey are perfectly, viscerally concrete,” they said, citing the 1992 ruling in Planned Parenthood v. Casey that preserved abortion rights following the 1973 Roe ruling.

“Countless women will now make different decisions about careers, education, relationships, and whether to try to become pregnant than they would have when Roe served as a backstop,” the dissenters said. “Other women will carry pregnancies to term, with all the costs and risk of harm that involves, when they would previously have chosen to obtain an abortion. For millions of women, Roe and Casey have been critical in giving them control of their bodies and their lives. Closing our eyes to the suffering today’s decision will impose will not make that suffering disappear.”

Again, that doesn’t mean the court will overturn Obergefell, even if a majority of today’s justices would have decided the case differently had they been on the bench in 2015. Just last year, the court rejected a petition that asked it to consider ditching the same-sex marriage precedent.

But in attempting to distinguish Obergefell from Roe, Alito continues to minimize the real-life impact of his Dobbs opinion.

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