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Dissent in Dobbs offers a eulogy for Roe and the rule of law

Looking back at the decision that took away access to abortion services as a federal right, court watchers highlight some notable aspects of the dissent from the Supreme Court's three Democratic appointees.

WASHINGTON (CN) — The three justices who dissented last week from the Supreme Court’s overturning of Roe v. Wade came together for a full-throated indictment of their colleagues in the conservative supermajority. 

“After today, young women will come of age with fewer rights than their mothers and grandmothers had,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote on Friday, taking the rare step of co-signing their opinion. “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.”

Experts say the unusual co-dissent shows unity between the justices and emphasizes the extreme nature of the decision

“It shows a really very unified agreement that they have to show that the appropriate way to understand the majority opinion is one that is radical, and there's really no division over that,” Caroline Fredrickson, a distinguished visitor from practice at Georgetown Law and senior fellow at the Brennan Center for Justice, said in a phone interview. 

Pointing both to Roe and Casey v. Planned Parenthood, a case that affirmed the former case in 1992, the dissenting justices said the choice of whether to bear a child is essential for women to control their own bodies and the course of their lives. 

“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 justices wrote. 

But even noting how fundamental this right was to women’s bodily autonomy, the dissenting justices say it was not absolute. The court created a balance between the rights of women and the rights of states to protect the “life of the fetus that may become a child.”

“Today, the Court discards that balance,” the justices wrote. “It says that from the very moment of fertilization, a woman has no rights to speak of.” 

The dissent aims to put into perspective the repercussions of overruling Roe. While the majority states that it is simply turning the issue over to state legislatures, the dissenting justices what this outcome truly means. They cite laws that would force women to carry their rapist’s child or that would require women to bear unsuccessful pregnancies. Pointing to statistics concerning the risks of pregnancy, the dissenting justices say American women are 14 times more likely to die carrying a pregnancy to term than by having an abortion. 

“What the dissent is trying to do is to humanize and contextualize the issue and say here are the people that it’s going to affect and here's why,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview.

Experts say it’s not only what the dissenting justices are saying that’s effective but how they are saying it. The dissent does this by appealing to emotion. 

“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” Breyer, Kagan and Sotomayor wrote.

Part of what makes this appeal powerful, experts say, is its reluctance to give into anger. 

“I think the three dissenters in Dobbs made a deliberate decision that the tone of their dissent was going to be sorrow, not anger,” Richard Bernstein, an appellate lawyer, said in a phone call. “I think that was very effective.

“These justices realize that anger is what motivates polarization and that an important part of their job is to oppose polarization," Bernstein continued. "Thus, they resisted the temptation to be angry. It was very impressive. It was equally unimpressive how angrily dismissive the majority opinions in Dobbs and Bruen were, as well as Justice Alito's concurrence in Bruen.” 

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In Friday's lead opinion for Dobbs, Justice Samuel Alito said the right to abortion is not protected by the 14th Amendment. Alito said the court should read the 14th Amendment as the founders did. Since abortion is not specifically noted in the Constitution and it was not originally recognized by the founders, Alito said, the court cannot recognize it as a right either. 

The dissent counters this argument by noting that the founders did not even consider women as full members of society. 

“Of course, ‘people’ did not ratify the Fourteenth Amendment. Men did,” the liberal justices wrote, referring to the words "We the people" from the preamble of the iconic document. "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.” 

Relying on this interpretation of constitutional rights categorizes women as second-class citizens, the dissent claims. 

“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,” the justices wrote. 

Stare decisis governs how the court contends with its own precedents. That principle says cases should not be overruled unless there is a very good reason. The majority in Dobbs justifies overruling 50 years of precedent by claiming Roe was “egregiously wrong from the start.” 

But the dissent argues that Roe and Casey have been law of the land for years, and that the only thing that has changed is the makeup of the court. 

“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” the justices wrote. 

The dissent said it’s not just hard but impossible to reach any other conclusion in this case. 

“​​The American public, they thought, should never conclude that its constitutional protections hung by a thread — that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ alone expunge their rights,” the justices wrote. “It is hard — no, it is impossible — to conclude that anything else has happened here.” 

By overturning landmark precedents for no other reason than having the votes to do so, the dissent claims the court undermines the rule of law. 

“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 dissenting justices underlined. “The majority thereby substitutes a rule by judges for the rule of law.” 

Experts worry that Dobbs marks a turning point in how the court will view precedent in the future. 

“​​I don't think it was accidental that the Dobbs dissent said, ‘we dissent’ rather than ‘we respectfully dissent,’” Bernstein said. “It signals that, when there is a more liberal majority on the Supreme Court, they will overrule Dobbs and a number of other decisions. That's the tragedy of burying stare decisis the way Dobbs has. In controversial areas of constitutional law, there will be this endless seesaw back and forth, depending on the composition of the court.”

The potential for the court to operate based on majority control instead of following the rule of law is concerning, experts say.

“That dynamic doesn't just tarnish the court's reputation, it fundamentally changes the institution,” Bernstein said. “Swinging back and forth is the dynamic of a political body. A court with that dynamic cannot possibly have the reputation of an apolitical institution. And that is dangerous for the country.”

Follow @KelseyReichmann
Categories / Civil Rights, Government, Politics

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