On June 24, 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization stating that there is no constitutional right to abortion, reasoning that “abortion is not specifically mentioned in the U.S. Constitution”, and “abortion is not rooted in the nation’s history and tradition,” nor is it an “essential component of ordered liberty.” Justices Breyer, Sotomayor, and Kagan filed a powerful jointly drafted dissenting opinion where they argued that Dobbs’ ruling sees women as “second-class citizens”. They also contested the majority’s originalist interpretation of the Constitution and gave us a glimpse to the future and to the possible consequences of the decision.
To start with, the dissent attacks the majority’s “core legal postulate”, that today in the 21st century we should read the Fourteenth Amendment just as its ratifiers did. Therefore, because the ratifiers didn’t see reproductive rights as part of the Fourteenth Amendments guarantee of liberty, neither should we. Unfortunately, those (men) in the 19th century did not recognize women as equals nor recognized women’s rights at all. The dissenting justices point out that the Constitution is not meant to be interpreted according to “the sentiments of one long-ago generation of men”. The terms “liberty” and “equality”, were written in a universal form, to allow room for evolution in their “scope and meaning.” The dissent states that applications of those open-ended terms can develop whilst remaining “grounded in constitutional principles, constitutional history, and constitutional precedents.” The dreadful outcome of the majority’s originalist interpretation of the Constitution is that it “consigns women to second-class citizenship.”
The dissent also pays attention to the Court’s determination to stay “neutral”. By leaving the decision-making about abortion to the States, the Court does not act “neutrally”. The decision taking away a right to abortion, which women have held for 50 years in the United States, does not make the Court “scrupulously neutral”. The fact is that by removing a woman’s right to choose whether to have a child “does not mean that no choice was being made”. As Breyer, Sotomayor, and Kagan demonstrate, the right to choose is taken away from women and given to the States.
How does this all affect women? For half a century Roe and later Casey have protected the liberty and equality of women. For women to be able to participate “fully and equally in the Nation’s political, social, and economic life”, they must have control over their reproductive decisions, as Casey recognized. The majority, however, does not think that forced childbirth has anything to do with a woman’s right to equality and freedom or that a woman’s control of her body has any constitutional significance incorporated to it, as Breyer, Sotomayor and Kagan disclosed. The outcome of Dobbs is that the constitutional regime now acknowledges only the State’s interest in protecting prenatal life and erases the woman’s interest. A striking fact the dissenting justices point out in the Court’s ruling is the lack of discussion about possible effects on women and especially on women living in poverty. In States where abortions are illegal, women who cannot afford to travel to another state to obtain an abortion, have a possibility to lose their lives due to unsafe abortions. So, when does the Fourteenth Amendment’s protection of life “kick in?” As shown in the Brief for the Howard University School of Law Human and Civil Rights Clinic as Amicus Curiae, 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. The majority’s answer to this is that “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” However, as the minority’s opinion tells us, sometimes contraceptives fail, not all sexual activity is consensual and sometimes the party at risk of pregnancy can not make the decision about contraceptives. To conclude this, at least one result of the Court’s ruling is certain: “the curtailment of women’s rights, and of their status as free and equal citizens.”
Finally, the dissenting opinion paints a worrying picture about the future. Although the majority states that “nothing it does casts doubt on precedents that do not concern abortion”, the dissenting justices argue that all rights with no history stretching to the mid 19th century are at stake. Settled freedoms involving bodily integrity, familial relationships, and procreation, are all part of the same constitutional structure which protects autonomous decision-making over the most personal decisions. For example, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. As demonstrated earlier, the dissent tells us that “the majority’s departure from Roe and Casey rests only on whether a woman’s decision to end a pregnancy involves any Fourteenth Amendment liberty interests”. The conclusion was that no liberty interests are present, because woman’s choice wasn’t protected in the 19th century. An interesting point was then brought up; the law also didn’t protect same sex intimacy and marriage, marriage across racial lines or right to use contraceptives nor right not to be sterilized without consent. Following the majority’s legal analysis all decisions protecting those rights were wrong as well. The possibility is that any issues with a moral dimension can be taken out of the Fourteenth Amendment and into state legislatures. Another worrying glimpse of the future comes from Justice Thomas’s concurrence. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.” All in all, the significance of the Court’s opinion and which rights it will affect, will rest in the future.
“As of today, young women will come of age with fewer rights than their mothers and grandmothers had.” Those are the words of the dissenting opinion, and they demonstrate a distressing future for the many millions of American women who lost a fundamental constitutional protection due to the majority’s decision. Just to say, according to The New York Times, in January 2023 most abortions are now banned in at least 13 states and in many states the fight over abortion still continues in courtrooms.
E.P.M.J.