'With Sorrow,' They Dissent.
Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor

For a good sense of just how monumental a loss of freedom the Supreme Court's decision today is, look no further than the eloquent, furious dissent written jointly by Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor, which begins on page 148 of the linked PDF. The dissent is a thoughtful protest of the majority's "cavalier approach to overturning women's rights," and as much as it's a careful dissection of the legal and reasoning flaws in the majority opinion overturning both Roe v. Wade and Planned Parenthood v. Casey, it's also very consciously written for the future, to draw a bright line around the disaster that the Court's decision today will be for women, for liberty, and for the Supreme Court's own legitimacy.

In short, the dissent says, the majority's decision will result in "the curtailment of women’s rights, and of their status as free and equal citizens."

The three justices warn that the decision not only paves the way for states to ban all abortions, with no exceptions for rape or incest, but that it sets the stage for women to be arrested and imprisoned for seeking an abortion. The claim that laws governing abortion will simply be decided by the states is far too glib, they point out: Women who can afford to go to the states where abortion remains legal will do so, while women who can't afford to travel will be forced to have children they also won't be able to afford to raise. Beyond that, additional restrictions will only be a matter of time:

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. 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.

When that happens, the "challenge for a woman will be to finance a trip not to 'New York [or] California' but to Toronto."

For American women, even the Constitution itself "will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all."

Kagan, Sotomayor, and Stephens also warn that "no one should be confident that this majority is done with its work," pointing out that for all the majority's claims that the decision is only excising the right to a legal abortion, there's no reason that should remain the case. After all, the majority says its decision to overturn Roe and Casey is because the right to abortion isn't “deeply rooted in history.” But then, neither are the rights the majority says it won't touch (or in Clarence Thomas's case, the rights he wants to eliminate as soon as possible).

So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

Ultimately, the dissenters note, there's "simply no good reason for the upheaval in law and society" the majority is setting off with its decision. Instead, it's the basest power politics:

The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.

The dissent argues that both cases were grounded in "core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives." For that matter, the right to have control over one's own body is a fundamental freedom: Free people don't want the government deciding what they can do with their lives. That means that no, basic rights can't be left to majority rule:

Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.

For good measure, the dissent takes a well-aimed swipe at the completely arbitrary view of "history" the majority takes, not only in today's decision, but also in yesterday's Guns Everywhere ruling. Noting that Samuel Alito reaches as far back as the 13th Century for historical precedents, the three justices note that he completely ignores English and early American law that allowed abortions up until the time of "quickening," when a fetus could be felt moving in the uterus. Can't respect any history that sounds at all like Roe's standard of fetal viability, after all, so,

The majority’s core legal postulate, then, is 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. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist

Then, in a brilliant observation, the dissenters point out the previous paragraph deliberately misstated the real historical context of the adoption of the Constitution and the 14th Amendment:

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, 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. [...]

When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.

For that matter, the men who ratified the 14th Amendment guaranteeing due process for all certainly wouldn't have thought 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."

So watch out for this sudden dedication to originalism, everyone who's benefited from Loving v. Virginia.

The dissent is full of little moments like that, contrasting the majority's doctrinaire claims to "neutrality" and "history" with the harm the decision will do to the law, especially to the principle of stare decisis, which holds that precedents matter unless there's a huge reason to set them aside. And again, there have been no changes in either the law or the facts of pregnancy and birth; the only change has been that there's now a majority on the court who have pledged to undo Roe and Casey, and that's that. "Because we can do it to you" is the new rule in America, and the supposed historical justification is absurd:

Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman—even in the first days of her pregnancy—that she could do nothing but bear a child, it can once more impose that command. Today’s decision strips women of agency over what even the majority agrees is a contested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and whatever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty. Even before we get to stare decisis, we dissent.

There's so much more, and it's such good writing that it could almost give you comfort to know there are still principled, thoughtful people on the Court to at least mark America's abandonment of freedom for half its citizens. But the danger is no longer potential. We're in distress going forward from today:

After today, young women will come of age with fewer rights than their mothers and grandmothers had. The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.

And the Court's legitimacy can only suffer going forward, they note, pointing out that the Court's legitimacy can be erased far more quickly than it was built up over decades.

With good reason, Sotomayor, Kagan, and Breyer close,

With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.

It feels all too much like an epitaph, because that's what it is.

[Supreme Court of the United States]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.


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