Dissenting Liberals Sound The Alarm On The Floodgates Opened By Overturning Roe

Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote an unusual joint dissent, in which they devote pages to alerting readers to the pandora’s box opened by the conservative majority officially overturning abortion rights. 

Despite (some) of the conservative justices’ protestations, Breyer, Sotomayor and Kagan dismiss the notion that the death of Roe won’t precede the death of other privacy rights, many of which flow from the same parts of the Constitution. 

“The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives,” they write. 

In other words: rights like same-sex marriage, privacy in same-sex relationships and access to contraception are next on the chopping block. Justice Clarence Thomas said as much in his concurrence, advocating outright for the Court to revisit and overturn those rights. 

When the majority roots its nullification of abortion rights in the country’s earliest history and in the word “abortion” being absent from the Constitution, it’s difficult to see how those other rights survive within that framework. Same-sex marriage certainly wasn’t accepted in colonial days; the word “contraception” appears nowhere in the Constitution; the ratifiers of the 14th Amendment wouldn’t have accepted interracial marriage. 

“Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry,” the dissenting liberal justices scoff. “It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.)”

No matter the empty promises of the conservative justices (minus Thomas), the dissenting justices warn, more constitutional rights are now incredibly vulnerable. 

They also sound the alarm on the dire things to come on the topic of abortion itself. Red states, they predict, will not content themselves with run-of-the-mill restrictions, or weeks-long gestational bans. Many will immediately ban the procedure outright. 

“Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization,” they write. “States have already passed such laws, in anticipation of today’s ruling. More will follow.”

The idea that the country will peaceably settle into a patchwork of anti-abortion states comfortably side-by-side with those protecting access is folly, they argue. Anti-abortion activists have always aimed to ban the procedure everywhere — and this decision only opens the floodgates for them to do so.  

“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,” they write. 

Indeed, Justice Samuel Alito, writing for the majority, permeated his writing with support for fetal personhood, the banner under which anti-abortion activists argue that the procedure should be outlawed. 

In the meantime, they predict, “interstate restrictions will also soon be in the offing.” A state legislator in Missouri already introduced a bill that would criminalize traveling elsewhere to obtain an abortion, and more are sure to follow. Blue states are responding by shoring up their laws to protect the obtaining and performing of abortions within their borders, setting up what the three justices call “interjurisdictional abortion wars” where there is very little precedent and history on which to rely. 

The dissent is clear-eyed in what Friday’s historic decision means for the country: a whole flotilla of constitutional rights associated with bodily autonomy and privacy in personal relationships under threat — and in the meantime, women being forced to carry to term pregnancies that result from rape or incest, or that threaten their lives, or that they simply don’t want. 

“Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat,” the justices write. “It is one or the other.”