Last month I wrote two posts in response to Justice Alito’s draft opinion in Dobbs v. Jackson. In the first, I took issue with his legal argument for overturning Roe v. Wade. In the second, I discussed the political background, especially the embrace of the religious right by the Republican Party.
Here, I’ll make a similar distinction between legal arguments and politics in my response to the actual reversal of Roe v. Wade. Since the majority opinion conforms to the reasoning of Justice Alito’s draft, I’ll focus more on Justice Breyer’s dissent, in which he was joined by Justices Sotomayor and Kagan.
Many conservatives are framing the abortion ruling as a victory in the struggle to restore family morality. Many liberals frame it very differently, as an attack on women’s rights and personal freedom. While Supreme Court justices are hardly indifferent to such concerns, they must also frame the issue as a matter of constitutional interpretation. They must ask what the words of the Constitution assert or imply about the rights of Americans. Here, the words in question are primarily those of the Fourteenth Amendment:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Court’s conservative majority believes in a narrow interpretation of the amendment, one that Justice Breyer criticizes as a “pinched” interpretation. In the narrow view, Americans have only the rights that were acknowledged and intended at the time the Constitution and its amendments were ratified. In the case of the Fourteenth Amendment, that would be in 1868. The argument that Alito and company mainly rely on is that no right to abortion existed at that time, since it was not deeply rooted in American history.
The Breyer dissent agrees on this fact: “In 1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one.” For the liberals, however, that does not settle the matter, because they believe that the Constitution embodies core principles that the Court must interpret and apply to changing circumstances.
As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents.
Democratic principles
Those core principles include freedom and equality, which imply some limits on what the state can make people do or stop them from doing. For example, nowhere does the Constitution mention marriage, and the Fourteenth Amendment was not passed in order to protect historically novel forms of marriage. But in modern times, the Court has acknowledged and expanded upon the right to marry, protecting some types of marriage not “deeply rooted in American history,” in particular interracial marriage in 1967 and same-sex marriage in 2015. Among the Court’s “prouder moments,” according to Breyer, are cases in which it gave new meaning to the Fourteenth-Amendment guarantees of liberty and equality.
The trouble with a narrow reading of the Amendment is that it eliminates not only any right to abortion, but any other rights and freedoms not recognized in 1868.
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. 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…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.
Breyer argues that this leaves the conservatives with a logical conundrum:
So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
The majority opinion protests repeatedly that its ruling is not intended to threaten other constitutional rights, but Breyer worries that its reasoning is an invitation for future justices to go in that direction. In fact, one of the Court’s conservatives, Justice Thomas, has already indicated his desire to throw out contraceptive rights and same-sex marriage rights along with abortion rights. (He does not include interracial marriage rights on his hit list, which would be awkward given his situation.)
The difference between the conservative and liberal views is crucial for women’s rights. The conservatives rely on the narrow conception of rights prevailing in 1868, and they are not bothered by the fact that the only people who could ratify those rights were men. For liberals, that suggests a problem demanding further analysis and interpretive progress: “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.” Now that the voting population is more “attuned”, we can view the matter differently.
Since they do not consider themselves bound by the view of nineteenth-century men, the liberal justices can concern themselves with the consequences of coerced childbearing for the freedom and wellbeing of modern women:
Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child… 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” [quotation from Casey]. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.
Precedent
Much of Breyer’s opinion is devoted to the importance of respecting precedent, as the conservatives appointed by President Trump claimed they would do during their confirmation hearings. For Breyer, the precedent at stake here is not just the Roe decision itself, but the “multitude of decisions” supporting the principle “that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decisionmaking.”
Now the Court has overturned previous decisions before. Both Alito and Breyer discuss the Brown v. Board of Education school desegregation case, which overturned the Plessy v. Ferguson ruling permitting allegedly “separate but equal” schools. While Alito and the conservatives regard the argument for overturning Roe as just as strong, Breyer and the liberals stress the differences. In the segregation cases, decades of discrimination had established the fact that segregated schools were not actually equal. In addition, “the law had begun to reflect that understanding. In a series of decisions, the Court had held unconstitutional public graduate schools’ exclusion of black students.” Nothing comparable has occurred with regard to abortion. No new body of facts has emerged to turn public opinion against it. And legal opinion in both the United States and the rest of world has generally become more supportive of reproductive rights.
No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed… The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.
That new composition reflects the Republican Party’s success in electing a right-wing president and confirming three new ultraconservative justices, even as the country becomes gradually more liberal on matters of personal morality. I will have more to say about that in my next post.
The Breyer opinion is scathing in its criticism of the majority’s willingness both to retract a previously acknowledged right, something the Court has never done before, and to stand in opposition to the longstanding struggle to expand human rights in general, and women’s rights in particular. They need a stronger justification than “once upon a time” people lacked these rights.
It makes radical change too easy and too fast, based on nothing more than the new views of new judges. 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 majority thereby substitutes a rule by judges for the rule of law.
Individual rights vs. states’ rights
Roe v. Wade, as well as the later Casey decision, tried to balance the competing interests of pregnant women and state governments. They recognized that states have a more legitimate interest in protecting lives that could survive outside a woman’s body than in supporting the gestation of every fertilized egg. Breyer complains that the ruling “erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).”
Those of us who lived through the civil rights struggle of the 1950s and 60s remember how diehard segregationists invoked the notion of “states’ rights” to resist the egalitarian implications of the Constitution. Eventually new federal laws helped enforce minority rights, although laws like the Voting Rights Act face resistance to this day (and are getting no help from the current Supreme Court). But as Brown v. Board of Education illustrates, the application of constitutional principles by the courts also played an important and constructive role. In contrast, the Dobbs decision abdicates that role. It leaves women at the mercy of states with poor records on human rights in general, especially the rights of women and children within historically disadvantaged groups. Breyer points out that “nearly half of women who seek abortion care live in households below the poverty line.” They will feel the curtailment of their options most keenly.
Competing at the state level to have one’s views reflected in the law is part of our democratic system. In a constitutional democracy, however, we need the courts to act as referees, affirming the general principles that prevent one group from infringing on the rights of another. When judges refuse to apply the Constitution, or give it only the narrowest of interpretations, they leave it to the states to fight it out on the basis of power rather than principle. That makes it more likely that injustice will prevail, and indeed it often has. I have to agree, therefore, with those who regard this decision as a setback in the struggle for a free and equitable society.
Beneath the Surface 