"It Undermines the Court's Legitimacy": How the Three Liberal Justices' Dissented to Overturning Roe

Eric Lutz / Vanity Fair
Abortion rights and anti-abortion demonstrators outside the U.S. Supreme Court in Washington, D.C., Thursday, June 23, 2022. (photo: Valerie Plesch/Getty)

In a withering dissent, the Supreme Court’s liberal minority decried the decision to overturn Roe v. Wade, writing that the ruling by their conservative colleagues “takes aim, we fear, at the rule of law.”

Condemning the decision as an attack on reproductive healthcare and a threat to a host of other civil rights, liberals Elena Kagan, Sonia Sotomayor, and Stephen Breyer wrote that the court “betrays its guiding principles” in the ruling. “It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans,” they dissented. “It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”

The Dobbs decision, which had been anticipated since a draft of Samuel Alito’s majority opinion leaked last month, will trigger immediate restrictions on abortion in roughly half the country — a dramatic rollback of reproductive rights that the court’s liberals wrote was “catastrophic.” But the minority also warned that the decision had potentially devastating implications for other rights, from same sex marriage to interracial marriage. “We cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” the justices wrote.

“According to the majority, no liberty interest is present — because (and only because) the law offered no protection to the woman’s choice in the 19th century,” they continued. “But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things.”

It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved.

“If that is true, it is impossible to understand…how the majority can say its opinion today does not threaten — does not even ‘undermine’ — any number of other constitutional rights,” they wrote, citing Justice Clarence Thomas' opinion concurring with the majority, in which he explicitly calls for the court to “reconsider” Griswold, Lawrence, and Obergefell, the landmarks that protect contraception, same-sex relationships, and same-sex marriage.

States began announcing abortion restrictions within minutes of the decision, including with Texas set to enact a total ban on the procedure — including in cases of rape and incest — by the end of July. “Whatever the exact scope of the coming laws,” the liberals wrote, “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”

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

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