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Supreme Court Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote a scathing dissent to the court’s decision to end Roe vs. Wade and annul the constitutional right to abortion.
They were responding to views set forth by Justice Samuel Alito, who wrote the majority opinion, along with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
“The Constitution does not confer the right to abortion; Roe and Casey are struck down; and the authority to regulate abortion is returned to the people and their elected representatives,” the court stated in a study program included with its extensive Dobbs v. Jackson Women’s Health Organization decision.
Dissenters vehemently disagree, warning that other Supreme Court precedents securing “established liberties involving bodily integrity, family relations, and procreation” may now be in jeopardy, such as rulings upholding contraception rights and the same-sex marriage.
Majority: Roe’s decision was a mistake
The Roe the decision was “grossly incorrect and on a collision course with the Constitution from the day it was decided,” the court curriculum states.
In his opinion, Alito writes that the 1973 ruling ended a political process in which states had for years crafted their own positions on abortion. “He imposed the same highly restrictive regime across the nation, effectively striking down all states’ abortion laws,” Alito wrote.
The judges mostly compared the situation to the court’s historic annulment of their Plessy v. fergusonwho endorsed the racist doctrine of “separate but equal” until it was undone by Brown v. Board of Education.
Dissent: The Majority Betrayed guiding principles
The dissent accuses the court of betraying its guiding principles by relegating women to second-class citizenship. He also questions the reasoning of the majority, saying that the Dobbs The decision will place an extreme burden on low-income pregnant people.
“Whatever the exact scope of the upcoming laws, one result of today’s decision is certain: the reduction of women’s rights and their status as free and equal citizens,” the dissent states.
Breyer, Sotomayor and Kagan say the court’s ruling throws out a balance established by previous abortion decisions. “She says that from the moment of fertilization, a woman has no rights to speak of,” they said.
The three liberal justices also say that the precedent was overturned not because of new scientific developments or societal changes, but because of changes in the composition of the Supreme Court.
Majority: Mississippi’s gestational age law is justified
When the Supreme Court granted the request of Mississippi officials to hear the case, it limited itself to a question: “If all the prohibitions prior to elective abortion are unconstitutional”.
Alito says the court considered several issues in deciding the case, including “whether the right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.”
He wrote that the Roe the decision “was remarkably lax in its treatment of the constitutional text. It held that the right to abortion, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
A state’s law regulating abortion “should be upheld if there is a rational basis on which the legislature might have thought it would serve the legitimate interests of the state,” Alito wrote. Those interests include “respect and preservation of prenatal life at all stages of development,” it added, along with protecting “maternal health and safety” and other issues, such as preserving “the integrity of the medical profession ” and “mitigation of fetal pain”.
“These legitimate interests justify the Mississippi Gestational Age Law,” Alito wrote.
Dissent: ‘Dobbs’ ruling sees women as second-class citizens
The dissenting justices attack what they call the “core legal tenet” of the majority justices: that the framers of the 14th Amendment did not view reproductive rights as central to liberty and therefore those rights should not have constitutional protection. today.
Those ratifiers were all men, points out the dissent.
“So perhaps it’s not all that surprising that the ratifiers weren’t perfectly attuned to the importance of reproductive rights to women’s freedom,” the dissent says.
“When the majority says we should read our charter as it stood at ratification (except we can also check it back to the Middle Ages), it consigns women to second-class citizenship,” she continues.
Majority: Women can work to influence state laws
By reinvesting in states the authority to decide whether most abortions should be illegal, the opinion “allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, vote and run for public office. Alito wrote.
“Women are not without electoral or political power,” she said. “It should be noted that the percentage of women who register to vote and cast their ballots is consistently higher than the percentage of men who do.”
Alito also sought to limit the interpretation of the decision, stating that “we emphasize that our decision addresses the constitutional right to abortion and no other right. Nothing in this opinion should be construed as casting doubt on precedents that do not address abortion.”
Dissent: Are the next decisions on contraception and same-sex marriage?
The dissent warns that a broader collapse of rights is possible, likening the extraction of a right by the majority of the constitutional edifice to pulling a stick out of a Jenga tower.
“Either the majority opinion of the majority is hypocrisy, or additional constitutional rights are under threat. It’s one or the other,” the judges wrote.
The dissidence warns that the decision in this case could be used to challenge other cases related to individual liberties, including the right to use contraception and the right to marry a same-sex partner.
“We fervently hope that doesn’t happen because of today’s decision. We hope we don’t join Justice Scalia in the book of prophets. But we cannot understand how anyone can be sure that today’s review will be the last of its kind.”