In a painful disagreement, the Supreme Court’s three liberal judges – Stephen Breyer, Sonia Sotomayor and Elena Kagan – said on Friday that the court’s seismic decision on abortion amounts to a “cavalier” alienation of precedent that runs the risk of the public’s destroy confidence in the court’s legitimacy.
“With grief – for this Court, but more, for the many millions of American women who have lost a fundamental constitutional protection today – we do not vote,” Breyer, Sotomayor and Kagan wrote.
The court’s conservative majority has a ruling in the case of Dobbs v. Jackson Women’s Health Organization given that nationwide abortion access would roll back by about 50 years, to a time before the same court legalized abortion with a watershed decision in the 1973 Roe v. Wade. It also had a later decision, Planned Parenthood v. Casey, explicitly reversed, which Roe maintained with a few exceptions intended to appease different views on abortion.
“Today, the court rejects that balance,” the judges wrote. “It says that a woman from the moment of conception has no rights to speak of. A state can force her to end a pregnancy, even at the most costly personal and family costs. ”
The liberal judges have outlined the grim consequences of Friday’s decision: States can now ban abortion at any stage during a pregnancy, can force a woman to carry a pregnancy to term, even if the child would within a short time die outside the womb, leaving the door open for states to impose criminal penalties on abortion providers and the patients who help them. States could even begin to stop pregnant residents from traveling out of state for an abortion, judges warned. Some will die if they try to get an unsafe abortion.
The judges lamented the rejection of “half a century” decisions that “protected the freedom and equality of women.”
Previous decisions have recognized that “respecting a woman as an autonomous being, and granting her full equality, means giving her a substantive choice over these most personal and most consequent of all life decisions,” they said. Friday’s Dobbs decision does not recognize “a woman’s freedom and equality,” they said.
Alito argued in his majority opinion that history prevents the Supreme Court from guaranteeing the right to abortion because, as he wrote, abortion “is not deeply rooted in the Nation’s history and tradition”. It was not enshrined in the Constitution, and there was “no support in U.S. legislation for a constitutional right to obtain an abortion” until the mid-20th century.
But many rights are not explicitly set out in the Constitution, as the court’s three liberals note. For example, women were not originally allowed to vote.
They argued that “one of two things must be true.”
“Or the majority do not really believe in his own reasoning. Or if it does, all rights that have no history dating back to the middle of the 19th century are uncertain. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are threatened. It is one or the other, ”they said.
The Dobbs decision was not a surprise. This came weeks after a draft opinion was leaked and published by Politico, which caused widespread alarm among proponents of reproductive health and sections of the public.
The final opinion was not functionally different from the concept. But Chief Justice John Roberts wrote his own, concurring opinion rather than aligning with Alito’s majority opinion.
Liberal judges have warned that other watershed decisions that guarantee key rights are in jeopardy given the Conservative court’s reasoning – including the right to contraception and the right of people to marry members of the same sex. Indeed, Judge Clarence Thomas wrote in a unanimous opinion that those cases should be reconsidered.
Lawyers have been saying for decades that making it harder to get an abortion is only going to lead to more unsafe and fatal abortions, as women who do not want to get pregnant will still seek termination.
A number of states – 22 according to HuffPost’s score – have been set up to ban, or effectively ban abortion, if the Supreme Court overturned Roe.
In some, anti-abortion “trigger” laws have been enacted to take effect immediately or within a short period of time. Others have introduced so-called “heartbeat” laws that prohibit abortion as soon as electrical activity can be detected in the fetus, which is about six weeks later. (Doctors say the term for such legislation is misleading.) Some states still have pre-Roe anti-abortion laws on the books, although some are already facing challenges.
“Above all, women who do not have the financial resources will suffer from today’s decision,” the court’s liberal judges said.
Legislators in a handful of states have taken the opposite direction and introduced legislation that protects the right to abortion, meaning those states – such as Illinois and California – can expect a flood of patients from other places across the country to arrive in ‘ an effort for safe health care.
A bill to protect the right to abortion at the federal level, the Protection of Women’s Health Act, has passed the House but has failed to make progress in the now divided Senate, where it seems unlikely to will move.