There’s a lot to read regarding today’s 5-4 decision by the U.S. Supreme Court to overturn Roe v. Wade, making official what we’ve known was about to happen since a near-final draft leaked in early May. I humbly suggest starting with the dissent, written by all three dissenting justices, Breyer, Sotomayor, and Kagan. Their dissent begins on page 148 of the PDF decision.
Some highlights. P. 3 (page 151 of PDF):
Most threatening of all, no language in today’s decision stops the
Federal Government from prohibiting abortions nationwide, once
again from the moment of conception and without exceptions for
rape or incest. If that happens, “the views of [an individual
State’s] citizens” will not matter. Ante, at 1. The challenge for
a woman will be to finance a trip not to “New York [or]
California” but to Toronto.
The lone rationale for what the majority does today is that the
right to elect an abortion is not “deeply rooted in history”: Not
until Roe, the majority argues, did people think abortion fell
within the Constitution’s guarantee of liberty. The same could be
said, though, of most of the rights the majority claims it is not
tampering with. The majority could write just as long an opinion
showing, for example, that until the mid-20th century, “there was
no support in American law for a constitutional right to obtain
[contraceptives].” So one of two things must be true. Either the
majority does not really believe in its own reasoning. Or if it
does, all rights that have no history stretching back to the mid-
19th century are insecure. Either the mass of the majority’s
opinion is hypocrisy, or additional constitutional rights are
under threat. It is one or the other.
As an initial matter, note a mistake in the just preceding
sentence. We referred there to the “people” who ratified the
Fourteenth Amendment: What rights did those “people” have in their
heads at the time? But, of course, “people” did not ratify the
Fourteenth Amendment. Men did. So it is perhaps not so surprising
that the ratifiers were not perfectly attuned to the importance of
reproductive rights for women’s liberty, or for their capacity to
participate as equal members of our Nation. Indeed, the ratifiers — both in 1868 and when the original Constitution was approved in
1788 — did not understand women as full members of the community
embraced by the phrase “We the People.” In 1868, the first wave of
American feminists were explicitly told — of course by men — that it was not their time to seek constitutional protections.
(Women would not get even the vote for another half-century.) To
be sure, most women in 1868 also had a foreshortened view of their
rights: If most men could not then imagine giving women control
over their bodies, most women could not imagine having that kind
of autonomy. But that takes away nothing from the core point.
Those responsible for the original Constitution, including the
Fourteenth Amendment, did not perceive women as equals, and did
not recognize women’s rights. When the majority says that we must
read our foundational charter as viewed at the time of
ratification (except that we may also check it against the Dark
Ages), it consigns women to second-class citizenship.
So how does that approach prevent the “scale of justice” from
“waver[ing] with every new judge’s opinion”? It does not. It makes
radical change too easy and too fast, based on nothing more than
the new views of new judges. The majority has overruled Roe and
Casey for one and only one reason: because it has always
despised them, and now it has the votes to discard them. The
majority thereby substitutes a rule by judges for the rule of law.
And its poignant conclusion (p. 60):
One of us once said that “[i]t is not often in the law that so few
have so quickly changed so much.” For all of us, in our time on
this Court, that has never been more true than today. In
overruling Roe and Casey, this Court betrays its guiding
With sorrow — for this Court, but more, for the many millions of
American women who have today lost a fundamental constitutional
protection — we dissent.
Keep the faith.
★ Friday, 24 June 2022