Having already read Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, when the Supreme Court announced its final decision, I decided that my time would be better spent reading the dissenting opinion from Justices Breyer, Sotomayer, and Kagan. Doing so proved very enlightening, and it’s a project I recommend to anyone with the interest and time to take it on. Or you can read below my observations on what the three justices wrote. (My initial essay on Dobbs is here.)
As you might suspect, the three dissenting justices are unimpressed with the reasoning of the majority. Supreme Court justices are not in the habit of calling their colleagues nasty names, but, within the bounds of judicial decorum, I think it fair to say that their dissent is scathing. Their view of what the reactionary justices in the majority were about is best captured in this analysis:
The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.
Much of the dissent is about the flimsy rationale offered for overturning Roe and Casey and the disdain shown by the majority toward both judicial convention and American women.
The Roe decision is nearly 50 years old. The Casey decision came fifteen years later, affirming the basic finding of Roe while rejecting its trimester scheme of Roe and introducing the undue burden standard limiting state-imposed restrictions on abortions.
Breyer, et al., argue that Americans have come to rely on the right to abortion. Extinguishing that right will have profound consequences, particularly for poor women. The court’s majority dismisses the reliance interest of women, however, and argues that any reliance interest that militates against rejecting a prior decision must be “very concrete,” involving, for example, contracts. The dissenters observe
The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.
The propriety of overturning Roe and Casey turns on the validity of the decisions themselves—the dissent actually focuses on Casey, as it was the ruling opinion prior to Dobbs—and on the doctrine of stare decisis, the legal principle that, absent compelling reasons to do otherwise, previous opinions should be respected.
Breyer, et al., explain that the right to seek an abortion was predicated on the concept of personal liberty derived from the Fourteenth Amendment. In Casey, the court struck a balance between state interests and those of the individual woman. In Dobbs, however, the interest of the woman disappears. The court, they say, does not believe in balance.
Why did the court not recognize a right to abortion in the Fourteenth Amendment? The answer involves the perverse notion of originalism, a legal concept not actually called out by name in the dissent. According to the dissenters, the majority was interested in only one question: Was the right to an abortion understood as a consequence of the Fourteenth Amendment when it was adopted in 1868? Of course, no one suggests that it was. If you buy into the notion that the meaning of a constitutional provision is forever fixed at the time of its adoption—this is the essence of originalism—then you must conclude that there was not a right to abortion in 1868, and, therefore, there is not one in 2022.
We should not be shocked that the court was willing to toss out half a century of legalized abortion based on what men thought in 1868. (Women had no voice in governing back then.) For example, in her confirmation hearing before the Senate Judiciary Committee, Amy Coney Barrett declared that originalism is the system of legal interpretation to which she is committed. As she explained,
I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.
Breyer, et al., reject this strange view and point out that the court has recognized other rights not enumerated in the Constitution and not recognized in 1868. Frighteningly, Justice Thomas is well aware of this and plans to do something about it in the future.
The dissent offers a long discussion regarding the circumstances in which a prior court ruling may properly be overturned despite the default inaction demanded by stare decisis. It is not enough—non-lawyers may be surprised by this—that a case was wrongly decided. There must be special circumstances that demand a correction. What has changed since Roe and Casey were decided? Nothing of substance. Only the philosophy of a majority of the justices has changed. Ironically, whereas the current court is returning the question of abortion to a time decades ago, many other countries have, in recent decades, expanded abortion rights.
The majority opinion cites a number of cases that were subsequently overruled to justify their action in Dobbs. The dissenters analyze each of these and find significant changes in society to justify the original decisions being overturned. They do not provide appropriate models for the decision in Dobbs.
The dissenters note that the legitimacy of the court is built over time, but that “it can be destroyed much more quickly.” They conclude their remarks with this observation:
In overruling Roe and Casey, this Court betrays its guiding principles.