‘Fewer rights than their grandmothers’: read three justices’ searing abortion dissent

After today, young women will come of age with fewer rights than their mothers and grandmothers had. 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.

One last consideration counsels against the majority’s ruling: the very controversy surrounding Roe and Casey. The majority accuses Casey of acting outside the bounds of the law to quell the conflict over abortion – of imposing an unprincipled “settlement” of the issue in an effort to end “national division”. But that is not what Casey did. As shown above, Casey applied traditional principles of stare decisis – which the majority today ignores – in reaffirming Roe. Casey carefully assessed changed circumstances (none) and reliance interests (profound). It considered every aspect of how Roe’s framework operated. It adhered to the law in its analysis, and it reached the conclusion that the law required. True enough that Casey took notice of the “national controversy” about abortion: the court knew in 1992, as it did in 1973, that abortion was a “divisive issue”. But Casey’s reason for acknowledging public conflict was the exact opposite of what the majority insinuates. Casey addressed the national controversy in order to emphasize how important it was, in that case of all cases, for the Court to stick to the law. Would that today’s majority had done likewise.

Consider how the majority itself summarizes this aspect of Casey:

That seems to us a good description. And it seems to us right. The majority responds (if we understand it correctly): well, yes, but we have to apply the law. To which Casey would have said: That is exactly the point. Here, more than anywhere, the court needs to apply the law – particularly the law of stare decisis. Here, we know that citizens will continue to contest the court’s decision, because “[m]en and women of good conscience” deeply disagree about abortion. When that contestation takes place – but when there is no legal basis for reversing course – the court needs to be steadfast, to stand its ground. That is what the rule of law requires. And that is what respect for this court depends on.

“The promise of constancy, once given” in so charged an environment, Casey explained, “binds its maker for as long as” the “understanding of the issue has not changed so fundamentally as to render the commitment obsolete.” A breach of that promise is “nothing less than a breach of faith.” “[A]nd no court that broke its faith with the people could sensibly expect credit for principle.” No court breaking its faith in that way would deserve credit for principle. As one of Casey’s authors wrote in another case, “Our legitimacy requires, above all, that we adhere to stare decisis” in “sensitive political contexts” where “partisan controversy abounds.”

Justice Jackson once called a decision he dissented from a “loaded weapon,” ready to hand for improper uses. We fear that today’s decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this court’s commitment to legal principle. It makes the court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.

“Power, not reason, is the new currency of this court’s decision-making.” Roe has stood for 50 years. Casey, a precedent about precedent specifically confirming Roe, has stood for 30. And the doctrine of stare decisis – a critical element of the rule of law – stands foursquare behind their continued existence. The right those decisions established and preserved is embedded in our constitutional law, both originating in and leading to other rights protecting bodily integrity, personal autonomy, and family relationships. The abortion right is also embedded in the lives of women – shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality. Since the right’s recognition (and affirmation), nothing has changed to support what the majority does today. Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this court.

Mississippi – and other states too – knew exactly what they were doing in ginning up new legal challenges to Roe and Casey. The 15-week ban at issue here was enacted in 2018. Other states quickly followed: between 2019 and 2021, eight States banned abortion procedures after six to eight weeks of pregnancy, and three states enacted all-out bans. Mississippi itself decided in 2019 that it had not gone far enough: The year after enacting the law under review, the state passed a six-week restriction. A state senator who championed both Mississippi laws said the obvious out loud. “[A] lot of people thought,” he explained, that “finally, we have” a conservative court “and so now would be a good time to start testing the limits of Roe”. In its petition for certiorari, the state had exercised a smidgen of restraint. It had urged the court merely to roll back Roe and Casey, specifically assuring the court that “the questions presented in this petition do not require the court to overturn” those precedents. But as Mississippi grew ever more confident in its prospects, it resolved to go all in. It urged the court to overrule Roe and Casey. Nothing but everything would be enough.

Earlier this Term, this court signaled that Mississippi’s stratagem would succeed. Texas was one of the fistful of states to have recently banned abortions after six weeks of pregnancy. It added to that “flagrantly unconstitutional” restriction an unprecedented scheme to “evade judicial scrutiny.” And five justices acceded to that cynical maneuver. They let Texas defy this court’s constitutional rulings, nullifying Roe and Casey ahead of schedule in the Nation’s second largest state.

And now the other shoe drops, courtesy of that same five-person majority. (We believe that the chief justice’s opinion is wrong too, but no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing states to prohibit abortion from the time of conception.) Now a new and bare majority of this court – acting at practically the first moment possible – overrules Roe and Casey. It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans. 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 of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the court’s legitimacy.

Casey itself made the last point in explaining why it would not overrule Roe – though some members of its majority might not have joined Roe in the first instance. Just as we did here, Casey explained the importance of stare decisis; the inappositeness of West Coast Hotel and Brown; the absence of any “changed circumstances” (or other reason) justifying the reversal of precedent. “[T]he court,” Casey explained, “could not pretend” that overruling Roe had any “justification beyond a present doctrinal disposition to come out differently from the court of 1973.” And to overrule for that reason? Quoting Justice Stewart, Casey explained that to do so – to reverse prior law “upon a ground no firmer than a change in [the court’s] membership” – would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this court and to the system of law which it is our abiding mission to serve.” For overruling Roe, Casey concluded, the court would pay a “terrible price”.

The Justices who wrote those words – O’Connor, Kennedy, and Souter – they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want justices to deliver. But if there were awards for justices who left this court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those justices up.

They knew that “the legitimacy of the court [is] earned over time.” They also would have recognized that it can be destroyed much more quickly. They worked hard to avert that outcome in Casey. The American public, they thought, should never conclude that its constitutional protections hung by a thread – that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard – no, it is impossible – to conclude that anything else has happened
here. One of us once said that “[i]t is not often in the law that so few have so quickly changed so much.” For all of us, in our time on this court, that has never been more true than today. In overruling Roe and Casey, this court betrays its guiding principles.

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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