Supreme Court Justices Stephen Breyer, Sonia SOtomayor, and Elena Kagan stand in their robes

This Is the Bleakest Supreme Court Dissenting Opinion I’ve Ever Read

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The Supreme Court handed down a decision in Dobbs v Jackson WHO Friday, the Mississippi abortion case that issued a direct challenge to Roe v Wade and Planned Parenthood v Casey. In a 5-4 decision, the conservatives on the court upheld Dobbs, overturning those constitutional abortion protections.

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A draft of the majority opinion, written by Samuel Alito, was leaked back in May. Looking over the official version, it doesn’t look like much—if anything—was changed. There’s still disturbing language about a “domestic supply of infants.” The text still directly calls out cases that served as precedent for Roe and Casey, making it extremely clear that abortion is not the only civil right on the line, and that the court has everything from interracial marriage to same-sex relationships to basic contraception in its sights.

What we did not get in the leaked draft was the dissenting opinion. In this case, Justices Kagan, Breyer, and Sotomayor joined together to write a rare joint opinion. (Roberts concurred with some parts of the majority opinion but not all of it, so technically the Dobbs decision is 6-3 but the vote to overturn Roe is 5-4.)

The dissent the justices wrote is powerful and also incredibly bleak. It paints a realistically dire picture of what the court has done. This decision, they write, “says that from the very moment of fertilization, a woman has no rights to speak of.” They’re not wrong.

A bleak present, bleaker future

The case at the core of Dobbs is a 15-week abortion ban but as the dissent notes—and as abortion activists have been saying for years—that is not where it will stop. “Enforcement of all these draconian restrictions will also be left largely to the States’ devices,” the dissent reads. And the fact that abortion is still legal in some states “is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision.”

Beyond that, they write, “interstate restrictions will also soon be in the offing,” meaning this decision only sets precedent for more restrictions, including outlawing inter-state travel for the purpose of seeking an abortion or receiving abortion medication in the mail. And on top of all of that, “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.”

“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,” the liberal justices write. “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. … But no longer.”

Other rights at risk

As soon as the leaked decision draft came out, it was clear that, while robbing us of abortion access was egregious enough on its own, that was not where this would end. The dissent states that “no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone.

Those decisions are inextricably tied to a whole host of other landmark cases, including ones that guarantee access to contraception, the right to engage in same-sex relationships, and even interracial marriage.

“They are all part of the same constitutional fabric, protecting autonomous decisionmaking over
the most personal of life decisions,” the dissent reads. None of those rights are safe.

By undermining the right to abortion but leaving so many other similarly decided rights on the table (for now), the liberal justices write, “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 mid 19th 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.”

Fewer rights than ever before

The majority opinion is based on a single question: “Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was ratified”? Obviously the answer is no, and the dissenting opinion lays out the history of those decisions at length. But the basic truth is that the Supreme Court exists to expand the understanding of our rights. For the court to use a decision to remove rights is nearly unprecedented.

“After today, young women will come of age with fewer rights than their mothers and grandmothers had,” the dissent reads. “The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.”

With sorrow … we dissent.

I wish there were some better way to end this, some note of hope. But the truth is that this decision sets the fight for equal rights back decades and there’s not much that can be done except keep moving forward. Politicians are flooding inboxes today asking for donations and while voting is important, Democrats aren’t going to save us. The people doing the boots-on-the-ground work will save us. Abortion funds will save us.

Again, I wish there were more hope here but it’s also OK to just feel sad (or angry or whatever else). The dissenting justices ended their opinion with a realistically bleak sentiment that I think a lot of us are feeling today, so at least we’re not alone: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

You can read the full dissenting opinion (starting on page 148) here.

(image: Alex Wong/Getty Images)

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Vivian Kane
Vivian Kane (she/her) is the Senior News Editor at The Mary Sue, where she's been writing about politics and entertainment (and all the ways in which the two overlap) since the dark days of late 2016. Born in San Francisco and radicalized in Los Angeles, she now lives in Kansas City, Missouri, where she gets to put her MFA to use covering the local theatre scene. She is the co-owner of The Pitch, Kansas City’s alt news and culture magazine, alongside her husband, Brock Wilbur, with whom she also shares many cats.