The Supreme Court of United States delivered its historic ruling in Dobbs v. Jackson Women’s Health Organization on June 24, 2022, overturning the long-standing precedents of Roe v. Wade and Planned Parenthood v. Casey. The majority opinion, written by Justice Samuel Alito, declared that the Constitution does not protect a right to abortion since abortion is neither explicitly mentioned in the Constitution nor deeply rooted in the nation’s history and tradition. This decision marked a dramatic shift in American legal tradition as it ended nearly 50 years of federal protection for abortion rights. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan authored a joint dissent defending constitutional liberty, equality, and the rule of law. Their dissent is not only a profound statement about the role of the Constitution in protecting individual rights, but also a warning that other rights are also at risk of being overturned.
The dissenting justices challenge the majority’s central argument: that the Fourteenth Amendment’s guarantee of liberty must be understood as its ratifiers did in 1868. According to the dissent, this originalist argument does not hold as the whole Constitution is drafted by men only and during the time women were not recognized as equal citizens. To interpret the Constitution solely through the perspectives of 1868, the dissent argues, means the exclusion of women from the promise of equal citizenship. The dissent also states that the Founding Fathers intended the Constitution as a basis for ongoing progress and adaptation, not a rigid document frozen in time. The conflict between living constitutionalism and originalism is evident.
The dissent emphasizes that the Supreme Court has repeatedly recognized new rights, such as the right to interracial marriage, the right to contraception, and the right to same-sex marriage based on the Fourteenth Amendment, even though those rights were not recognized in 1868. The dissent warns that the majority’s originalist argumentation threatens not only abortion but also the other hard-won rights. Although the majority grants that Dobbs does not affect the aforementioned freedoms, another case in the future might do just that. Justice Clarence Thomas’s concurrence, which explicitly calls for the Court to reconsider and overturn Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, underlines the dissent’s fears.
The majority opinion and justice Brett Kavanaugh’s concurrence claim that by returning the issue of abortion to the states, the Court is taking a “neutral” position. The dissent forcefully rejects this view. The dissenting justices argue that true neutrality would mean protecting the right to abortion from state interference, just as the Court protects other fundamental rights. Instead, the Court has stripped women of a right they have depended on for nearly fifty years, leaving them at the mercy of state legislatures. Correspondingly, the Court took a very different stance when dealing with gun rights and the Second Amendment in District of Columbia v. Heller and New York State Rifle & Pistol Association Inc. v. Bruen. In the latter case, for instance, the Court declared that States have no power to forbid people from carrying guns in public places. The dissenting justices ask whether Justice Kavanaugh would “say that the Court is being ‘scrupulously neutral’ if it allowed New York and California to ban all the guns they want?”
The dissent highlights the disproportionate impact of this decision on women without financial means. Wealthy women may still access abortion by traveling to states where it remains legal, but poor women often do not have the means to do that. The dissent notes that states have already passed laws banning abortion even in cases of rape or incest. Thus, the majority’s decision will force women into dangerous and life-altering situations, undermining their autonomy and equality.
The dissenting justices warn that the majority’s decision is not just about abortion but about the very nature of constitutional rights. By rejecting the originalist idea that rights must be frozen in the past, the dissent defends the principles of progress and equality. Finally, the dissenting justices end their opinion with the following sentence: “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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