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How the three dissenting justices argued against overturning Roe v. Wade

Woman reacts to US Supreme Court decision on abortion
REUTERS/Evelyn Hockstein
Abortion rights demonstrator reacts outside the United States Supreme Court as the court rules in the Dobbs v Women’s Health Organization abortion case, overturning the landmark Roe v Wade abortion decision in Washington, U.S., June 24, 2022.
By Sofia Lotto Persio
Published Last updated

The US Supreme Court voted to overturn Roe v. Wade, the 1973 decision that legalized abortion in the country. The three dissenting justices, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, strongly rejected the legal arguments used by the majority to justify their decisions, and said they worry about what other rights are now under threat. Here are some of the most notable quotes from their dissenting opinion (pdf).

The justices start by laying out how Roe v. Wade, and the subsequent 1992 decision Planned Parenthood v. Casey, are so fundamental to women’s autonomy.

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.

The justices paint a grim picture of what states may legislate off the back of the majority’s decision.

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. Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course 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. […] 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.  The challenge for a woman will be to finance a dissenting trip not to “New York [or] California” but to Toronto.

The justices expressed strong concerns about the precedent the decision sets for other rights that are dependent on the Roe and Casey‘s interpretation of 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 majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” But how could that be? 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 justices argue their colleagues have failed to demonstrate a need to reverse Roe and Casey, which have been the law of the land for decades.

The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, 1 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.

The dissenting opinion fundamentally disagrees with the majority’s interpretation of the US Constitution, and specifically the 14th amendment.

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.

The justices argue the majority’s decision failed to take into account its far-reaching implications.

After today, young women will come of age with fewer rights than their mothers and grandmothers had. The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.

They fear the decision will create more uncertainty.

Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.

The dissenting opinion is about 50 pages long, but its core thesis is expressed in just a few sentences.

[The majority] eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.

The three dissenting justices’ last words leave no doubt to their feelings over the majority’s decision.

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.

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