‘With Sorrow, We Dissent’: The Three Justices Who Rejected Dobbs

The dissent in Dobbs v. Jackson blasts the conservative justices for overruling Roe and Casey “for one and only one reason: because [they have] always despised them, and now [have] the votes to discard them.”

For the first time in American history, the Supreme Court has rescinded a constitutional right and conferred it on the states where it may be regulated, abolished and criminalized. (Stefani Reynolds / AFP via Getty Images)

In one of the most important dissenting opinions in Supreme Court history, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan systematically refuted the arrogant, cruel and legally unsound majority opinion written by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization eliminating a woman’s constitutional right to an abortion.

The masterful 60-page dissent, with extensive legal citations, deserves to be read by everyone who cares about the future of the United States’ constitutional democracy. For the first time in American history, the conservative majority has rescinded a constitutional right and conferred it on the states where it may be regulated, abolished and criminalized.

For half a century, Roe v. Wade and later, Planned Parenthood v. Casey, “have protected the liberty and equality of women,” Breyer, Sotomayor and Kagan wrote.

Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life. It could not determine what the woman’s future would be. 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.”        

The three justices framed the majority opinion of Dobbs as a devastating blow to human rights:

“[The majority] 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. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life.”

The dissenting justices gave voice to the millions of women harmed by the Dobbs decision.

“Above all others, women lacking financial resources will suffer from today’s decision. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services.” 

Breyer, Sotomayor and Kagan also warned that “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 is blunt. “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” the three justices wrote. “Stare decisis, this Court has often said, ‘contributes to the actual and perceived integrity of the judicial process’ by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals.’…  Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. We dissent.”

Meticulously, the dissent dissected the majority opinion, revealing its egregious errors.

“To hear the majority tell the tale, Roe and Casey are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law. That is not true.”

When Roe was decided with a 7-2 vote, the Court said that a long line of precedents “founded in the Fourteenth Amendment’s concept of personal liberty” protected individual decision making related to “marriage, procreation, contraception, family relationships, and child rearing and education.” 

In the 20 years between Roe and Casey, the Court expressly reaffirmed Roe on two occasions and applied it on many more. In 1976, 1979, 1983 and 1990, the Court enforced the constitutional principles Roe had declared. Then, in Casey in 1992, the Court considered the matter anew and again upheld Roe’s core precepts.

The dissent also exposed the majority’s central misguided proposition: “that we in the 21st Century must read the Fourteenth Amendment just as its ratifiers did. If the ratifiers did not understand something as central to freedom, then neither can we.”

In a remarkable and candid insight, the dissenters wrote:

“Of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 [when the Fourteenth Amendment was ratified] and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase ‘We the People.’”

Casey held that a woman’s place in society had changed, and constitutional law had changed along with it. The relegation of women to inferior status in either the public sphere or the family was “no longer consistent with our understanding” of the Constitution. In Dobbs, the dissenting justices agreed:

“This Court has rejected the majority’s pinched view of how to read our Constitution. ‘The Founders,’ we recently wrote, ‘knew they were writing a document designed to apply to ever-changing circumstances over centuries.’ NLRB v. Noel Canning (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is ‘intended to endure for ages to come,’ and must adapt itself to a future ‘seen dimly,’ if at all.  McCulloch v. Maryland (1819).”

The dissent included other landmark decisions over the course of American history that differ from essentialist constitutional interpretations.

“Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion. Yet the Court in Loving v. Virginia (1967), read the Fourteenth Amendment to embrace the Lovings’ union. The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.”

The decision in Dobbs, the majority blithely assured us, “does not undermine” decisions involving “marriage, procreation, contraception, [and] family relationship.”

But at least one justice begs to differ. “[I]n future cases,” Justice Clarence Thomas wrote, “we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [same sex intimate relations], and Obergefell [same-sex marriage]” and “overrul[e] these demonstrably erroneous decisions.” (Thomas, himself in an interracial marriage, did not mention overruling Loving v. Virginia.)

Pulling no punches, the dissent accused the majority of overruling 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.”

The risks of carrying a pregnancy to term dwarf those of having an abortion. Experts estimate that 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. Black women are now three times more likely to die during or after childbirth than white women, often from preventable causes.

According to the dissent, many women “still do not have adequate healthcare coverage before and after pregnancy; and, even when insurance coverage is available, healthcare services may be far away. Only 20 percent of private-sector workers have access to paid family leave, including a mere 8 percent of workers in the bottom quartile of wage earners.

“In Mississippi, for instance, 19 percent of women of reproductive age are uninsured and 60 percent of counties lack a single obstetrician-gynecologist. Sixty-two percent of pregnancies in Mississippi are unplanned, yet Mississippi does not require insurance to cover contraceptives and prohibits educators from demonstrating proper contraceptive use. Mississippi has the highest infant mortality rate in the country.”

The dissent documented in detail how the disruption caused by overturning Roe and Casey will be profoundly felt by the women of the country. About 18 percent of U.S. pregnancies end in abortion, and about one in four American women will have an abortion before the age of 45. As Casey understood, and the dissent observed, “people today rely on their ability to control and time pregnancies when making countless life decisions: where to live, whether and how to invest in education or careers, how to allocate financial resources, and how to approach intimate and family relationships.”

The justices also explained how financial insecurity exacerbates problems with abortion access.

“Women living below the federal poverty line experience unintended pregnancies at rates five times higher than higher income women do, and nearly half of women who seek abortion care live in households below the poverty line.”

The opinion called the history of state abortion restrictions a history of “women seeking illegal abortions in hotel rooms and home kitchens; of women trying to self-induce abortions by douching with bleach, injecting lye, and penetrating themselves with knitting needles, scissors, and coat hangers. It is a history of women dying.”

“When Roe and Casey disappear,” the dissenters wrote, “the loss of power, control, and dignity will be immense. After today, young women will come of age with fewer rights than their mothers and grandmothers had.”

Breyer, Sotomayor and Kagan declared: “[By] overruling Roe and Casey, this Court betrays its guiding principles. With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

The Dobbs decision was written by a majority of five Supreme Court justices, three of whom were appointed by Donald Trump within just the last five years, after swearing under oath before Congress and the American people that they recognized and accepted Roe and Casey as binding precedents.

Breyer, Sotomayor and Kagan have done a monumental public service by documenting for all time the politically motivated and legally fallacious decision in Dobbs v. Jackson. This shameful ruling joins the list of ignominious cases such as Dred Scott v. Sandford, Plessy v. Ferguson and Korematsu v. United States, which were all later discredited and reversed. Until the day comes that a future Court, more deeply and honestly dedicated to the protection of constitutional rights, reverses Dobbs, we must organize, organize, organize—for the sake of our daughters and granddaughters, wives and partners, and any person who elects to terminate their pregnancy. 

The disastrous consequences of the craven political decision in Dobbs must be addressed with every political means at our disposal. We need to mobilize people across the country and get out the vote to secure elected officials in every state legislature, the Congress, the Senate and the White House who are pledged to restoring the constitutional right to reproductive freedom. The constitutional right to reproductive freedom needs to be enshrined in an amendment to the U.S. Constitution and in every state constitution.              

Three courageous and compassionate justices have done their part. Now we have to do ours.

This article is adapted from a longer version published in L.A. Progressive.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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Stephen Rohde, an author and social justice advocate, practiced civil rights and constitutional law for over 45 years, including representing two men on California’s death row. He is the former chair of the ACLU Foundation of Southern California and former national chair of Bend the Arc, a Jewish Partnership for Justice. He is also a board member of Death Penalty Focus.