Dobbs May Be Just The First Domino, Dissent Warns

(June 24, 2022, 11:13 PM EDT) -- In a scathing and sorrowful dissent, the U.S. Supreme Court's liberal justices warned Friday that the "catastrophic" decision to overturn Roe v. Wade not only strips millions of American women of their constitutional right to abortion but "throws longstanding precedent to the winds" and threatens the very foundation of the U.S. legal system.

Abortion rights protesters gather outside the U.S. Supreme Court in Washington, D.C., on Friday after the decision to overturn Roe v. Wade. Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer slammed the conservative majority for curtailing women's rights. (AP Photo/Gemunu Amarasinghe)

In their joint dissent in Dobbs v. Jackson Women's Health Organization , Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer slammed the conservative majority not only for curtailing women's reproductive rights but for departing "from its obligation to faithfully and impartially apply the law."

The dissent argued that the majority abandoned stare decisis with its decision to overrule the Supreme Court's 1973 decision in Roe v. Wade , which established a woman's constitutional right to an abortion, and its 1992 decision in Planned Parenthood v. Casey , which reaffirmed a woman's right to an abortion while also giving states greater authority to regulate the procedure.

"After today, young women will come of age with fewer rights than their mothers and grandmothers had," the liberal justices wrote.

Some legal experts read the dissent as a call to get organized.

Christine Bird, an attorney and visiting assistant political science professor at the University at Albany's Rockefeller College of Public Affairs and Policy, told Law360 that the dissent "reads as a clear and stark warning to the public to start organizing to protect substantive due process rights that are historically related to privacy (birth control, marriage, etc.) outside of the legal sphere."

Bird said the three justices also sound the alarm about what they call the majority's unprincipled departure from stare decisis — the legal principle of determining points in litigation according to precedent.

The Supreme Court's decision in Dobbs upholds a Mississippi ban on nearly all abortions after 15 weeks of pregnancy and sets the stage for a major rollback of abortion rights in many states across the country.

But Friday's decision came as little surprise, given that Justice Samuel Alito's draft majority opinion upholding the Mississippi abortion ban had leaked in early May.

In the dissent, the justices wrote that the "majority has no good reason for the upheaval in law and society it sets off. Roe and Casey have been the law of the land for decades, shaping women's expectations of their choices when an unplanned pregnancy occurs."

The liberal justices said the majority's decision permits state laws barring abortion from the moment of fertilization and noted that some states have already passed abortion bans without any exceptions for when a woman is the victim of rape or incest.

"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," the dissenting justices wrote.

The conservative majority failed to present any special justification for the harm it is causing while simultaneously ignoring the tens of millions of American women who rely on the right to choose, the dissenters said.

"In the end, the majority throws longstanding precedent to the winds without showing that anything significant has changed to justify its radical reshaping of the law," the dissent states.

"We fear that today's decision, departing from stare decisis for no legitimate reason, is its own loaded weapon," the dissenting justices wrote, adding that weakening stare decisis threatens bedrock legal doctrines and creates 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," the dissent said.

"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 liberal justices also drew the public's attention to what they understood to be the conservative justices' "lone rationale" for its Dobbs decision: That in 1868 — the year Congress ratified the Fourteenth Amendment, which addresses equal protection under the law and due process — the reproductive right recognized in Roe and Casey did not exist.

"Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today," the dissenters said.

The dissent argued that perhaps the right to an abortion did not exist then because neither the drafters of the U.S. Constitution nor the ratifiers of the Fourteenth Amendment were women. What is more, these men did not perceive women as equals and did not recognize women's rights, the dissent said.

"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 liberal justices wrote.

The dissent warns that the conservative majority's core legal postulate — "that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did" — consigns women to second-class citizenship and that the same argument could be made for many other rights that Americans hold dear.

The dissent flat out rejects this position, stating that the high court has a "longstanding view that women indeed have rights (whatever the state of the world in 1868) to make the most personal and consequential decisions about their bodies and their lives."

While the Dobbs decision, "taken on its own, is catastrophic enough," the liberal justices expressed concern that the conservative-led court may attempt to overturn other similar rights in the future.

"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," the dissenting justices said, rejecting the conservative wing's attempts to reassure the public that its decision in Dobbs is narrowed to just this case.

"Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, 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. (Think of someone telling you that the Jenga tower simply will not collapse.)," the dissenters said.

The dissent also criticized Justice Clarence Thomas' concurrence in Dobbs, which stated that in future cases, "we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."

These cases recognized constitutional rights to contraception, same-sex intimacy and same-sex marriage.

Justice Thomas went on to write that in future cases, "we have a duty" to "overrul[e] these demonstrably erroneous decisions."

The dissent warns that based on the logic it applied in Dobbs, the majority may also go after a wealth of other rights only protected by law in the last century and a half.

Back in the mid-19th century, the dissent notes, the law "did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use."

"Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat," the dissenting justices wrote. "It is one or the other."

"And no one should be confident that this majority is done with its work," they continued, adding that the right that Roe and Casey recognized does not stand alone. The justices said the court has, for decades, linked Roe and Casey to settled freedoms that involve bodily integrity, family and procreation.

Justices Kagan, Breyer and Sotomayor concluded their opinion by saying, "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."

--Editing by Jill Coffey and Jay Jackson Jr.

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