Friday, June 24, 2022
The US Supreme Court expressly overruled the 50-year old constitutional right for women to choose an abortion. Dobbs v. Jackson Women's Health Organization.
The vote is 5-4 to overturn Roe/Casey, with the majority opinion by J. Alito, joined by Thomas, Gorsuch, Kavanaugh and Barrett. Roberts concurs only in the judgment of upholding the 15-week ban, but not in overruling Roe. The dissent is Breyer, Sotomayer, and Kagan.
In my first quick look, the majority opinion is not much different from the leaked draft opinion.
Thomas in his concurrence of one calls for revisiting Griswold, Lawrence, and Obergefell, meaning to challenge the constitutional rights to marital privacy, contraception, sexual intimacy and conduct, and same-sex marriage.
Kavanaugh in concurrence says the Constitution calls for neutrality, and not taking sides between the pregnant woman's interest and the fetal life, which he says Roe did. He footnotes a Rehnquist dissent that says exceptions to protect the life of the woman are constitutionally required. He emphasizes that the decision doesn't prohibit abortion, but allows for legislative action. He responds to Thomas and says nothing in the opinion calls into question the constitutional rights to contraception or LGBTQ rights because abortion is different. And, in veiled reference to harmonize the Court's recent decision in Bruen on the Second Amendment, he says in a footnote that the relevant historical evidence for the abortion decision is at the time the 14th Amendment was enacted in 1868 when two-thirds of the states criminalized abortion.
Roberts concurs only to uphold the judgment. He overturns the viability standard from Roe, but does not overrule the right to abortion completely.
A joint dissent by Justices Breyer, Sotomayor, and Kagan is explicit in noting the philosophical and physical harms to women from the decision:
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions.
See Gender & the Law Prof Blog, The Joint Dissent in SCOTUS Abortion Case Calls Out Women's Loss of Citizenship