The Dissent

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.

P. 4:

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.

P. 14:

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.

P. 33:

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 principles.

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