The Far Right has succeeded: In a devastating ruling, the Supreme Court majority has overturned Roe v. Wade and Casey v. Planned Parenthood. In Dobbs v. Jackson Women’s Health, ultra-conservative justices have eliminated the constitutional right to abortion. In so doing, they have committed an unprecedented assault on our freedom. They have especially endangered people who are already unable to access equitable healthcare: poorer people; people of color; and LGBTQ+ people. And they have craftily laid the groundwork to assault other constitutional rights they have long opposed.
It is a dark day in American history.
The majority opinion: Alito’s leaked draft is now the law
Justice Samuel Alito’s leaked draft terrified the nation. But it was “only a draft.” Now it is real. He wrote the majority opinion in Dobbs, and it is much the same as the draft. He was joined by Justices Clarence Thomas and all three justices installed by Donald Trump and Mitch McConnell -- Neil Gorsuch, Brett Kavanaugh, and Amy Barrett -- making a five-justice majority. (Chief Justice John Roberts concurred in the result only – more on that later.)
Alito finds it important that the specific word “abortion” does not appear in the Constitution. He acknowledged that the Supreme Court has in the past identified other constitutional rights that are not specifically enumerated in the Constitution. But he writes that the Court only acknowledges such rights if they are deeply rooted in our history and tradition “and” essential to our Nation’s scheme of ordered liberty. (As others have pointed out, Alito distorts that test: it’s been “or,” not “and.” This deception now makes it harder to protect unenumerated rights in future cases.)
Alito presents a much-criticized version of history in which abortion was regularly unlawful at the time the Fourteenth Amendment was adopted, back in 1868. Therefore, he reasons, the framers did not understand the new amendment’s protection of “liberty” to include the right to make one’s own decisions about pregnancy.
(It is worth noting that in 1868, women could not vote, and in many states a woman’s property automatically became her husband’s upon marriage. In addition, wives were legally considered to have consented to sex with their husbands at any time simply by marrying them, making it legally impossible for a husband to be prosecuted for raping his wife. None of that stops Alito and his colleagues from deferring to what they claim the Americans who approved the Fourteenth Amendment had in mind.)
What is the impact of this decision on protections for liberty and the right to privacy?
Roe correctly recognized that the liberty protected by the Constitution must include intimate decisions about family, which the Court had already recognized in the past. For instance, in the 1965 Griswold case, it recognized a constitutional right for married couples to use contraception. That is part of the greater constitutional right to privacy. In the 1942 Skinner case, the Court recognized the constitutional right not to be involuntarily sterilized and have the decision whether to have children be taken away. In the 1925 Pierce v. Society of Sisters case, the Court protected the constitutional right of parents to direct their children’s upbringing and education.
And after Roe, the Court protected the right to privacy in several ways. These included, in 1977, the right to live with family members (Moore v. East Cleveland); also in 1977, the right to marry while in prison (Turner v. Safley); in 2003, the right to same-sex intimacy (Lawrence v. Texas); and in 2015, the right to marry someone of the same sex (Obergefell v. Hodges).
None of these rights is explicitly mentioned in the Constitution. And the Far Right is deeply hostile to some of them, especially the ones protecting contraception and those recognizing the equality, dignity, and humanity of LGBTQ+ people. Conservatives on and off the court have long attacked the line of Supreme Court cases from Griswold onward protecting privacy. And the reasons they offer for why the Constitution does not protect those rights are exactly the same ones that Alito uses to say that abortion is not protected. In fact, Thomas has a concurrence in Dobbs specifically calling on the Court to “reconsider” Griswold, Lawrence, and Obergefell.
Alito’s majority opinion tries to convince people that he isn’t laying the groundwork to attack these other rights. He tries to reassure people by saying abortion is different from other privacy cases because only abortion involves the “critical moral question” of ending an unborn human’s life.
But that should not give anyone any comfort. All it means is that the “critical moral question” used to justify banning abortion is different from the “critical moral questions” purportedly justifying laws banning same-sex couples from having sex or marrying, banning the use of contraception, etc. No rational person can possibly believe that Alito and his colleagues won’t go after the right to privacy writ large. They have certainly made it clear in other contexts they want to undo Obergefell. And, as noted above, Thomas says it in this very case.
Overruling precedent
In the past, the Court has declined to overrule precedent simply because a new majority disagreed with it. For instance, Casey upheld Roe’s central holding, even though not all of the justices in the majority agreed with Roe. Generally, there have to be exceptional circumstances to justify overruling a precedent, because so much of the rule of law depends on upholding precedents.
Alito claims this is just such an exceptional circumstance. For one thing, he claims that Roe “short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect.” But the entire point of a constitutional right is that it is protected from hostile majorities seeking to curtail that right. Alito’s characterization simply puts a negative spin on that because he opposes the right to abortion.
Alito also claims that the “undue burden” standard set forth in Casey “has proved to be unworkable.” As evidence, he cites circuit court disagreement across a variety of abortion-related cases as to whether a particular restriction is an undue burden. But that disagreement is the result of having anti-abortion judges who were put on the bench in part to stymie Casey and uphold what are obviously undue burdens on the right to abortion. Alito uses this judicial defiance of precedent as an excuse to overrule that precedent.
Equal Protection and some irony
One small portion of Alito’s opinion is worth mentioning for its sheer chutzpah.
The right to abortion has been identified as coming from the right to privacy protected by the Fourteenth Amendment’s Due Process Clause. Alito dedicates a tiny portion of his opinion to the question of why a constitutional right to abortion can’t be found in the Equal Protection Clause: because that option “is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification.”
“Squarely foreclosed by our precedents.” Yes, the majority said that, in a case where they overruled one of the most important precedents in American history.
Chief Justice Roberts’s concurrence
Chief Justice Roberts wrote a concurrence that no other justice joined. He agreed with the majority that Mississippi’s abortion ban should be upheld. But he would not have gone so far as to overrule Roe and Casey. He criticized those cases for focusing on fetal viability as a constitutionally relevant factor. He would have ruled that a pregnant person has a constitutional right to a “reasonable opportunity” for an abortion, but “certainly not all the way to viability.”
Roberts criticized the majority for “repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed.” He called it “a serious jolt to the legal system.”
Roberts’ fealty to precedent is quite situational. He did not mind the “jolt[s] to the legal system” – and to our nation – caused when he and his far-right colleagues jettisoned precedent in cases like Citizens United (opening up our elections to unlimited corporate money) or Janus (striking down “fair share” fees for public sector unions).
So Roberts would have overruled the core holding of Roe and Casey, but he would have avoided the headlines generated by an explicit overruling of those cases.
The dissent
Reflecting the profound importance and devastating impact of taking away a constitutional right, the three moderate justices issued a joint dissent. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan noted that for half a century, Roe and Casey “have protected the liberty and equality of women.” They wrote:
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.
That has now changed. From the moment of fertilization, a pregnant individual “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.” Now a state can impose its own moral choice on that individual and “coerce her to give birth to a child.”
The dissenters criticized the majority for trying to hide the scope of their ruling by saying some states may continue to permit abortion care. That is “cold comfort” for the poor individual “who cannot get the money to fly to a distant State for a procedure.” “Above all others,” people without financial resources “will suffer from today’s decision.”
The dissenting justices also note that abortion opponents are already planning to impose interstate restrictions. Some states will prohibit pregnant people from traveling out of state for abortion care, and some may prohibit the receipt of abortion medications from outside the state. Yet even that is not the worst:
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.
The dissent also warns of the other constitutional rights now at risk from the majority:
And 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.
Because all these rights are linked, the majority’s assurances that they don’t mean to threaten those rights cannot be taken seriously. The dissenters say this quite clearly:
Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
What can we do?
There is no turning away from the devastating impact the far-right Supreme Court justices have imposed on women and, indeed, all people capable of becoming pregnant. This will cause particular harm to people in communities already vulnerable to inequities in the healthcare system: people of color, LGBTQ+ people, and people without significant financial means. And the damage will be lasting.
But we can make sure it is not forever. After all, today’s devastating ruling is the result of decades of organizing by abortion opponents. We, too, must work to change the Supreme Court and the entire judiciary. We need fair-minded judges on all our courts. It is a long-term project, but one that has never been more important. And in the short term, as soon as this November, it is crucial that Americans vote for senators and others who will support judges who recognize the right to abortion, as well as for public officials at the local and state level who will use their power to protect the rights the far-right majority attacked in their decision today.