In a pained dissent, the Supreme Court’s three liberal justices ― Stephen Breyer, Sonia Sotomayor and Elena Kagan ― said Friday that the court’s seismic decision on abortion amounted to a “cavalier” disposal of precedent that risks destroying public trust in the court’s legitimacy.
“With sorrow ― for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection ― we dissent,” wrote Breyer, Sotomayor and Kagan.
The court’s conservative majority handed down a decision in the case of Dobbs v. Jackson Women’s Health Organization that will roll nationwide abortion access back by about 50 years, to a time before the same court legalized abortion with a watershed decision in the 1973 case of Roe v. Wade. It also explicitly overturned a later decision, Planned Parenthood v. Casey, which upheld Roe with some exceptions meant to appease differing viewpoints on abortion.
“Today, the Court discards that balance,” the justices wrote. “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 liberal justices outlined the grim consequences of Friday’s decision: States could now ban abortion at any point during a pregnancy, could force a woman to carry a pregnancy to term even if the child would die within a short time outside the womb, and leaves the door open for states to impose criminal penalties on abortion providers and the patients they help. States could even start blocking pregnant residents from traveling out of state for an abortion, the justices warned. Some will die trying to obtain an unsafe abortion.
The justices lamented the abandonment of “half a century” of decisions that “protected the liberty and equality of women.”
Previous decisions acknowledged that “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,” they said. Friday’s Dobbs decision does not recognize “a woman’s freedom and equality,” they said.
Alito argued in his majority opinion that history precludes the Supreme Court from guaranteeing the right to abortion because, as he wrote, abortion is “not deeply rooted in the Nation’s history and tradition.” It was not enumerated in the Constitution, and there was “no support in American law for a constitutional right to obtain an abortion” until the mid-20th century.
But many rights were not explicitly laid out in the Constitution, as the court’s three liberals note. Women were not originally allowed to vote, for example.
They argued that “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,” they said.
The Dobbs decision was not a surprise. It came weeks after a draft opinion was leaked and published by Politico, prompting widespread alarm among reproductive health advocates and swaths of the public.
The final opinion was not functionally different from the draft. But Chief Justice John Roberts wrote his own, concurring opinion rather than join Alito’s majority opinion.
The liberal justices warned that other watershed decisions guaranteeing key rights were in jeopardy, given the conservative court’s reasoning ― including the right to contraception and the right of people to marry members of the same sex. Indeed, Justice Clarence Thomas wrote in a concurring opinion that those cases should be reconsidered.
Advocates have said for decades that making it more difficult to obtain an abortion is only going to lead to more unsafe and deadly abortions, as women who do not want to be pregnant will still seek termination.
A number of states ― 22 by HuffPost’s count ― were set up to ban abortion, or effectively ban it, if the Supreme Court overturned Roe.
In some, anti-abortion “trigger” laws are set to go into effect immediately or within a short period of time. Others enacted so-called “heartbeat” laws that ban abortion once electrical activity can be detected in the fetus, which is about six weeks in. (Doctors say the term for such legislation is misleading.) A few states have pre-Roe anti-abortion laws still on the books, too, although some are already facing challenges.
“Above all others, women lacking financial resources will suffer from today’s decision,” the court’s liberal justices said.
Lawmakers in a handful of states have gone the opposite direction and enacted legislation protecting the right to abortion, meaning that those states ― such as Illinois and California ― can expect a flood of patients from other places around the country to show up in an attempt to secure health care.
A bill to protect the right to abortion on the federal level, the Women’s Health Protection Act, passed the House but has failed to make progress in the narrowly divided Senate, where it appears unlikely to budge.