Much has been written about the Supreme Court’s arrogant, cruel and legally unsound 5-4 decision in Dobbs v Jackson Women’s Health Organization overturning Roe v Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992), which had affirmed and reaffirmed a woman’s constitutional right to an abortion. Too little attention has been devoted to the compassionate, powerful and masterful dissent jointly written by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan, which systematically refutes the regressive and deeply flawed majority opinion written by Justice Samuel Alito.
The 60-page dissent, with extensive case citations supporting each of its points, is one of the most important dissents in the Court’s history. It deserves to be read by everyone who cares about the future of our constitutional democracy. In particular, it should be required reading for every elected official, judge, and voter in the United States. And it should be part of the curriculum in every middle school, high school, college, and university in America because for the first time in American history, the Court has rescinded an individual right protected for almost half a century and conferred it on the States to abolish, regulate, and criminalize.
In clear, direct and readable terms, free of legal jargon (many of the key portions are quoted here in full) the dissent explains why the majority opinion contradicts the fundamental relationship between the people of the United States and their government.
The Conservative Majority Has Always “Despised” Roe and Casey and “Now It Has the Votes to Discard Them”
For half a century, the dissent begins, Roe and Casey “have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life. It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.”
“Today,” the dissent states, “the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.”
Beyond all this, the dissent warns that a State could impose criminal penalties on abortion providers, including lengthy prison sentences: “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.”
But it gets worse. “Above all others, women lacking financial resources will suffer from today’s decision. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services.”
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.” As of today, “this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die.”
Ominously, the dissent points out that “no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. They are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions.”
The dissent is blunt. “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, ‘contributes to the actual and perceived integrity of the judicial process’ by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals.’... Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. We dissent.”
Meticulously, the dissent dissects the majority opinion and reveals its egregious errors.
“To hear the majority tell the tale, Roe and Casey are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law. That is not true.” Instead, the dissent explains how these key decisions “are rooted in—and themselves led to—other rights giving individuals control over their bodies and their most personal and intimate associations. The majority does not wish to talk about these matters for obvious reasons; to do so would both ground Roe and Casey in this Court’s precedents and reveal the broad implications of today’s decision. But the facts will not so handily disappear.”
Roe and Casey, the dissent explains, “were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. Those legal concepts, one might even say, have gone far toward defining what it means to be an American. For in this Nation, we do not believe that a government controlling all private choices is compatible with a free people. So we do not (as the majority insists today) place everything within ‘the reach of majorities and [government] officials.’ We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.”
Some 50 years ago, by a 7-to-2 vote, the Court in Roe explained that a long line of precedents “founded in the Fourteenth Amendment’s concept of personal liberty” protected individual decision-making related to “marriage, procreation, contraception, family relationships, and child rearing and education.” For the same reasons, the Court held that the Constitution must protect “a woman’s decision whether or not to terminate her pregnancy.” A State could not, “by adopting one theory of life,” override all “rights of the pregnant woman.” At the same time, though, the Court also recognized “valid interest[s]” of the State “in regulating the abortion decision.” The Court noted in particular “important interests” in “protecting potential life,” “maintaining medical standards,” and “safeguarding [the] health” of the woman. No “absolut[ist]” account of the woman’s right could wipe away those significant state claims. The Court therefore struck a balance based on the stage of the pregnancy at which the abortion would occur.
In the 20 years between the Roe and Casey cases, the Court expressly reaffirmed Roe on two occasions and applied it on many more. Recognizing that “arguments [against Roe] continue to be made,” the Court consistently responded that the doctrine of stare decisis “demands respect in a society governed by the rule of law” and avowed that the “vitality” of “constitutional principles cannot be allowed to yield simply because of disagreement with them.” So the Court, in 1976, 1979, 1983, and 1990, enforced the constitutional principles Roe had declared. Then, in Casey in 1992, the Court considered the matter anew and again upheld Roe’s core precepts, grounded in the Fourteenth Amendment’s explicit guarantee of liberty that encompasses realms of conduct not specifically referenced in the Constitution: “Marriage is mentioned nowhere” in that document, yet the Court was “no doubt correct” to protect the freedom to marry “against state interference.”
The dissent confronts head on the majority’s core misguided proposition “that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.” In a remarkable and candid insight, the dissent notes that “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 [when the Fourteenth Amendment was ratified] 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.’”
“There was a time,” Casey explained, when the Constitution did not protect “men and women alike.” But times had changed. Casey held that a woman’s place in society had changed, and constitutional law had changed along with it. The relegation of women to inferior status in either the public sphere or the family was “no longer consistent with our understanding” of the Constitution. Now, “[t]he Constitution protects all individuals, male or female,” from “the abuse of governmental power” or “unjustified state interference.”
So, the dissent asks, “how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny? How is it that our Constitution, through the Fourteenth Amendment’s liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for themselves whether and when to bear a child? How is it that until today, that same constitutional clause protected a woman’s right, in the event contraception failed, to end a pregnancy in its earlier stages?”
“The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution. ‘The Founders,’ we recently wrote, ‘knew they were writing a document designed to apply to ever-changing circumstances over centuries.’ NLRB v. Noel Canning, 573 U. S. 513, 533–534 (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is ‘intended to endure for ages to come,’ and must adapt itself to a future ‘seen dimly,’ if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Farmers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.”
In one of its most telling observations, the dissent points out that the “Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion. Yet the Court in Loving v. Virginia, 388 U. S. 1 (1967), read the Fourteenth Amendment to embrace the Lovings’ union. The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.”
The applications of liberty and equality, the dissent explains, “can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.” But the constitutional “tradition” of this country is not captured whole at a single moment. “Rather, its meaning gains content from the long sweep of our history and from successive judicial precedents—each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions.
The dissent points out that Casey explicitly rejected the present majority’s method. “[T]he specific practices of States at the time of the adoption of the Fourteenth Amendment,” Casey stated, do not “mark[ ] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” To hold otherwise—as the majority does today—“would be inconsistent with our law.” Why? Because the Court has “vindicated [the] principle” over and over that (no matter the sentiment in 1868) “there is a realm of personal liberty which the government may not enter”—especially relating to “bodily integrity” and “family life.” Casey described in detail the Court’s contraception cases. It noted decisions protecting the right to marry, including to someone of another race. (“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference”). In reviewing decades and decades of constitutional law, Casey could draw but one conclusion: Whatever was true in 1868, “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.”
And that conclusion, according to the dissent, “still held good, until the Court’s intervention here. It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision-making. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents. It (literally) rattles them off in a single paragraph; and it implies that they have nothing to do with each other, or with the right to terminate an early pregnancy. But that is flat wrong. The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.”
Consider first, the dissent suggests, the line of Supreme Court cases protecting “bodily integrity.” “No right,” in this Court’s time-honored view, “is held more sacred, or is more carefully guarded,” than “the right of every individual to the possession and control of his [or her!] own person,” citing two decisions from 1891 and 1990 (Every adult “has a right to determine what shall be done with his own body”). Or as the dissent puts it: “Everyone, including women, owns their own bodies. So the Court has restricted the power of government to interfere with a person’s medical decisions or compel her to undergo medical procedures or treatments;” citing decisions involving forced surgery; forced stomach pumping; and forced administration of antipsychotic drugs. “The majority does not say—which is itself ominous—whether a State may prevent a woman from obtaining an abortion when she and her doctor have determined it is a needed medical treatment.”
Roe and Casey, the dissent explains, “fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation. Those cases safeguard particular choices about whom to marry; whom to have sex with; what family members to live with; how to raise children—and crucially, whether and when to have children. In varied cases, the Court explained that those choices—‘the most intimate and personal’ a person can make—reflect fundamental aspects of personal identity; they define the very ‘attributes of personhood.’ And they inevitably shape the nature and future course of a person’s life (and often the lives of those closest to her). So, the Court held, those choices belong to the individual, and not the government. That is the essence of what liberty requires. And liberty may require it, this Court has repeatedly said, even when those living in 1868 would not have recognized the claim—because they would not have seen the person making it as a full-fledged member of the community.”
Throughout our history, the dissent notes, “the sphere of protected liberty has expanded, bringing in individuals formerly excluded. In that way, the constitutional values of liberty and equality go hand in hand; they do not inhabit the hermetically sealed containers the majority portrays. So before Roe and Casey, the Court expanded in successive cases those who could claim the right to marry—though their relationships would have been outside the law’s protection in the mid19th century,” including interracial couples; prisoners; and untraditional family units.
Faced with all these connections between Roe and Casey and judicial decisions recognizing other constitutional rights, the dissent observes that “the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. Today’s decision, the majority first says, ‘does not undermine’ the decisions cited by Roe and Casey—the ones involving ‘marriage, procreation, contraception, [and] family relationship’—‘in any way’ and ‘Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’”
But at least one Justice begs to differ. “The first problem with the majority’s account comes,” the dissent points out, from Justice Thomas who “makes clear he is not with the program. In saying that nothing in today’s opinion casts doubt on non-abortion precedents, Justice Thomas explains, he means only that they are not at issue in this very case. (“[T]his case does not present the opportunity to reject” those precedents). But he lets us know what he wants to do when they are. “[I]n future cases,” he says, “we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [same sex intimate relations], and Obergefell [same sex marriage].” And when we reconsider them? Then “we have a duty” to “overrul[e] these demonstrably erroneous decisions.” (Justice Thomas, who is in an interracial marriage, did not mention Loving v. Virginia. One person who noticed the omission was Samuel L. Jackson, who tweeted: “How’s Uncle Clarence feeling about Overturning Loving v Virginia??!!”)
Even placing Justice Thomas’s concurrence to the side, the dissent argues that “the assurance in today’s opinion still does not work. Or at least that is so if the majority is serious about its sole reason for overturning Roe and Casey: the legal status of abortion in the 19th century. Except in the places quoted above, the state interest in protecting fetal life plays no part in the majority’s analysis. To the contrary, the majority takes pride in not expressing a view ‘about the status of the fetus.’ The majority’s departure from Roe and Casey rests instead—and only—on whether a woman’s decision to end a pregnancy involves any Fourteenth Amendment liberty interest.” Consequently, the constitutional rights protected in Griswold, Lawrence, and Obergefell - and any other right five justices decide were not recognized in 1868 - are in grave danger. According to the dissent, today’s decision, taken on its own, is catastrophic enough. As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judgments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitution to reflect, that the world progresses). And by doing so, it includes those excluded from that olden conversation, rather than perpetuating its bounds.
The dissent drives home its central point: “As a matter of constitutional substance, the majority’s opinion has all the flaws its method would suggest. Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command.”
“Today’s decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty.”
Pulling no punches, the dissent accuses the majority of overruling 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.”
The Majority’s Dismissive Attitude Toward Woman “Exists Far From the Reality American Women Actually Live”
Today, the dissent points out, the risks of carrying a pregnancy to term dwarf those of having an abortion. Experts estimate that a ban on abortions increases maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase. This projected racial disparity reflects existing differences in maternal mortality rates for black and white women. Black women are now three to four times more likely to die during or after childbirth than white women, often from preventable causes.
Pregnancy and childbirth may also impose large-scale financial costs. According to the dissent, many women “still do not have adequate healthcare coverage before and after pregnancy; and, even when insurance coverage is available, healthcare services may be far away. Women also continue to face pregnancy discrimination that interferes with their ability to earn a living. Paid family leave remains inaccessible to many who need it most. Only 20 percent of private-sector workers have access to paid family leave, including a mere 8 percent of workers in the bottom quartile of wage earners. In Mississippi, for instance, 19 percent of women of reproductive age are uninsured and 60 percent of counties lack a single obstetrician-gynecologist. Sixty-two percent of pregnancies in Mississippi are unplanned, yet Mississippi does not require insurance to cover contraceptives and prohibits educators from demonstrating proper contraceptive use. The State neither bans pregnancy discrimination nor requires provision of paid parental leave. It has strict eligibility requirements for Medicaid and nutrition assistance, leaving many women and families without basic medical care or enough food. Although 86 percent of pregnancy-related deaths in the State are due to postpartum complications, Mississippi rejected federal funding to provide a year’s worth of Medicaid coverage to women after giving birth. Perhaps unsurprisingly, health outcomes in Mississippi are abysmal for both women and children. Mississippi has the highest infant mortality rate in the country.”
The reasons for retaining Roe and Casey gain further strength from the overwhelming reliance interests those decisions have created. The dissent explains that the “Court adheres to precedent not just for institutional reasons, but because it recognizes that stability in the law is ‘an essential thread in the mantle of protection that the law affords the individual.’ Casey understood that to deny individuals’ reliance on Roe was to ‘refuse to face the fact[s].’ Today the majority refuses to face the facts. ‘The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women. By characterizing Casey’s reliance arguments as ‘generalized assertions about the national psyche,’ it reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.”
In Casey, the Court observed that for two decades individuals “have organized intimate relationships and made” significant life choices “in reliance on the availability of abortion in the event that contraception should fail.” Over another 30 years, the dissent points out “that reliance has solidified. For half a century now, in Casey’s words, ‘[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.’ Indeed, all women now of childbearing age have grown up expecting that they would be able to avail themselves of Roe’s and Casey’s protections.”
The dissent documents in detail how the disruption caused by overturning Roe and Casey will be profound. Abortion is a common medical procedure and a familiar experience in women’s lives. About 18 percent of pregnancies in this country end in abortion, and about one quarter of American women will have an abortion before the age of 45. Those numbers reflect the predictable and life-changing effects of carrying a pregnancy, giving birth, and becoming a parent. As Casey understood, the dissent observes, “people today rely on their ability to control and time pregnancies when making countless life decisions: where to live, whether and how to invest in education or careers, how to allocate financial resources, and how to approach intimate and family relationships. Women may count on abortion access for when contraception fails. They may count on abortion access for when contraception cannot be used, for example, if they were raped. They may count on abortion for when something changes in the midst of a pregnancy, whether it involves family or financial circumstances, unanticipated medical complications, or heartbreaking fetal diagnoses. Taking away the right to abortion, as the majority does today, destroys all those individual plans and expectations. In so doing, it diminishes women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life.”
The dissent takes the majority to task for ignoring “that some women decide to have an abortion because their circumstances change during a pregnancy. Human bodies care little for hopes and plans. Events can occur after conception, from unexpected medical risks to changes in family circumstances, which profoundly alter what it means to carry a pregnancy to term. In all these situations, women have expected that they will get to decide, perhaps in consultation with their families or doctors but free from state interference, whether to continue a pregnancy.”
For those who will now have to undergo that pregnancy, the dissent characterizes the loss of Roe and Casey as “disastrous” and especially so for women without money. “When we ‘count the cost of [Roe’s] repudiation’ on women who once relied on that decision, it is not hard to see where the greatest burden will fall. In States that bar abortion, women of means will still be able to travel to obtain the services they need. It is women who cannot afford to do so who will suffer most. These are the women most likely to seek abortion care in the first place. Women living below the federal poverty line experience unintended pregnancies at rates five times higher than higher income women do, and nearly half of women who seek abortion care live in households below the poverty line. Even with Roe’s protection, these women face immense obstacles to raising the money needed to obtain abortion care early in their pregnancy.”
After today, the dissent anticipates that “in States where legal abortions are not available, they will lose any ability to obtain safe, legal abortion care. They will not have the money to make the trip necessary; or to obtain childcare for that time; or to take time off work. Many will endure the costs and risks of pregnancy and giving birth against their wishes. Others will turn in desperation to illegal and unsafe abortions. They may lose not just their freedom, but their lives.”
The dissent reminds us that the “history of state abortion restrictions is a history of heavy costs exacted from the most vulnerable women. It is a history of women seeking illegal abortions in hotel rooms and home kitchens; of women trying to self-induce abortions by douching with bleach, injecting lye, and penetrating themselves with knitting needles, scissors, and coat hangers. It is a history of women dying.”
Finally, the expectation of reproductive control is, as the dissent puts it, “integral to many women’s identity and their place in the Nation as an ‘equal citizen,’ with all the rights, privileges, and obligations that status entails. It reflects that she is an autonomous person, and that society and the law recognize her as such. Like many constitutional rights, the right to choose situates a woman in relationship to others and to the government. It helps define a sphere of freedom, in which a person has the capacity to make choices free of government control. As Casey recognized, the right ‘order[s]’ her ‘thinking’ as well as her ‘living.’ Withdrawing a woman’s right to choose whether to continue a pregnancy does not mean that no choice is being made. It means that a majority of today’s Court has wrenched this choice from women and given it to the States.”
“When Roe and Casey disappear,” the dissent predicts “the loss of power, control, and dignity will be immense. The Court’s failure to perceive the whole swath of expectations Roe and Casey created reflects an impoverished view of reliance. This unprecedented assertion is, at bottom, a radical claim to power. By disclaiming any need to consider broad swaths of individuals’ interests, the Court arrogates to itself the authority to overrule established legal principles without even acknowledging the costs of its decisions for the individuals who live under the law, costs that this Court’s stare decisis doctrine instructs us to privilege when deciding whether to change course.” “After today,” the dissent states with obvious regrets, “young women will come of age with fewer rights than their mothers and grandmothers had.”
The dissent is appalled by the majority’s claim that the reliance interests women have in Roe and Casey are too “intangible” for the Court to consider. “This is to ignore,” the dissent responds, “as judges what we know as men and women. The interests women have in Roe and Casey are perfectly, viscerally concrete. 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. 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.”
The dissent concludes by recalling that in his dissent in a case in 1991, Justice Thurgood Marshall warned that “Power, not reason, is the new currency of this Court’s decision-making.”
“Roe has stood for fifty years. Casey, a precedent about precedent specifically confirming Roe, has stood for thirty. And the doctrine of stare decisis—a critical element of the rule of law—stands foursquare behind their continued existence.” The dissents points out that “nothing has changed to support what the majority does today. Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this Court.”
Therefore, the dissent forthrightly declares that by “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.”
The Dobbs decision was written and embraced by a bare majority of five Supreme Court justices, three of whom were appointed by Donald Trump within just the last five years, after swearing under oath before Congress and the American people that they recognized and accepted Roe and Casey as binding precedents. Under the Constitution, Supreme Court justices serve only during “good behavior.” It is not good behavior to lie under oath. In doing so, they have exposed themselves to impeachment and removal from office.
Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan have done a monumental public service in documenting for all time the politically motivated and legally fallacious decision in Dobbs v Jackson Women’s Health Organization. This shameful ruling joins the list of cases such as Dred Scott, Plessy v Ferguson and Korematsu, which were all later discredited and reversed. Until the day comes that a future Court, more deeply and honestly dedicated to the protection of constitutional rights, reverses Dobbs, we must organize, organize, organize – for the sake of our daughters and granddaughters, wives and partners, and any person who elects to terminate their pregnancy.
The disastrous consequences of the craven political decision in Dobbs must be addressed with every political means at our disposal. We need to mobilize people across the country and get out the vote to secure elected officials in every state legislature, the Congress, the Senate, and the White House who are pledged to restoring the constitutional right to reproductive freedom. Despite what five conservative justices have said by manipulating the Constitution and by distorting settled legal principles, there is a constitutional right to reproductive freedom and it needs to be enshrined in an amendment to the U.S. Constitution and in every state constitution. Meanwhile, we need to lobby the Biden administration to partner with Planned Parenthood and adapt or build medical facilities on federal land throughout the United States to provide safe and affordable abortions, and where necessary, underwrite the costs for woman who can’t afford to pay. States that have not banned abortions should welcome woman who have elected to terminate their pregnancies and likewise underwrite the costs for those who can’t afford to pay. Civic, community, business, and religious organizations need to provide love and support to anyone who chooses to terminate their pregnancy.
Three courageous and compassionate justices have done their part. Now we have to do ours.