Dobbs: The Joint Dissent

Sharia 👏🏻law 👏🏻allows👏🏻 for 👏🏻abortions https://t.co/GhfJOw8B2P

— Dr. Kari Nixon (@HalfSickShadows) June 25, 2022

I will not provide a comprehensive discussion of the dissent. Here is one summary by a high school student (Class of 24) at High School SCOTUS. Other summaries can be found by Amy Howe and Dahlia Lithwick. These all provide various aspects covered, including talking about the majority opinion.  

[Also, Linda Coffee, the lesser known co-counsel in Roe v. Wade, is still around.  Just to check in.]

The dissent does not try to comprehensively argue for the constitutional right to abortion.  It does not discuss (flagged by Sotomayor) possible religious liberty arguments.  It references that the choice is a moral one that people have conflicting views over.  But, it does not address that argument. It does not discuss the (expressed more often in commentary these days) Thirteenth Amendment argument.  

It does not provide an extended look at how the liberty at issue arises from a range of constitutional provisions.  It does summarize the basic constitutional interests involved and precedents that protected them. This is a basic core of what is at stake:

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them.

This answers two basic arguments of the majority and concurrences. (1) Abortion is somehow unique (2) Only substantive due process is involved. It is not unique.  The right to choose an abortion is part of a united whole. And, it is one that is necessary for women's equality.  

The majority covers both.  This includes how the denial of a right to choose "situates a woman in relationship to others and to the government. It helps define a sphere of freedom, in which a person has the capacity to make choices free of government control."  The denial of this right, the idea that Constitution is "neutral" on this, is a horrible announcement. 

The dissent also reaffirms what is often known as "living constitutionalism" (some don't like that name), not primarily concerned about what the state of affairs was in 1868 or even 1972.  A lot has happened even in the last fifty years here.  The "common law constitution" approach looks at all the facts, including the law and experiences of each specific era. 

Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights.  

Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

I find the citation of "the Framers" overdone, but understand that by now that is how the Court and the people want to see things. One might call this part of stare decisis.  What the Framers did was ratify specific text, which we today have to apply, using our own judgment be an eye to the complete history behind us.  

And, I think many Framers was well aware that this was how it would happen. How else is open-ended language likely to be applied?  I think the dissent overdid the women's rights bit a tad.  The Constitution did provide certain equal rights to women. Women slaves were freed.  They had due process rights when prosecuted for a crime. And so on.  

But, clearly, in large part because they played only a limited role in the political process [not NONE -- women did speak out, petition, and so on], in 1868 they were not treated as full citizens.  The facts on the ground in 1868 has to be taken into consideration when history is referenced here. As I noted in the Kavanaugh entry, the history of abortion regulations here is complicated.  Breyer noted in his gun dissent that justices aren't historians. But, selective use of evidence is also what judges tend to do in general.

They also typically make access to early abortion easier, for example, by helping cover its cost.

The dissent has some bite, both snark (such as reference of the possibility of a right to time travel) and anger ("The effects will be felt most severely, as they always have been, on the bodies of the poor. ... It is a history of women dying.")  It also strongly replies to the majority on precedent, including how other countries also secure a right to abortion.  And, if some countries do so only in the first trimester, there are significant differences, including open-ended exceptions and a much stronger social welfare state. 

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. 

The YOLO Court.  At some point, it must get oh so tiring.  

And after the fetus’s viability—the point when the fetus “has the capability of meaningful life outside the mother’s womb”—the State could ban abortions, except when necessary to preserve the woman’s life or health.

The dissent takes Planned Parenthood v. Casey for granted, and realizes Chief Justice Roberts is but one vote.  His concurrence is (as I noted) dealt with in basically a dismissive way in one sentence.  They don't agree with him, but clearly the majority is much worse.  Since the majority set the line at fertilization, and there is so much more to talk about, a debate over line drawing is not covered.  

That is, the dissent does not substantively (other than as an appeal to precedent that reasonably decided the issue without any good ground to overturn) try to defend the viability line.  The quoted passage does suggest that there is a basic difference between so-called "potential life" inside the womb and persons protected outside it. One with a basis in the Constitution.  

The dissent denied that it did not recognize any state interest in potential life. By accepting the current balance, the dissent was accepting that the growing life inside the womb legitimately can be recognized in ways not in place otherwise.  Again, the dissent did not in depth discuss such things, and I would not be surprised if Sotomayor might have differed some from the others (at least) on what exactly was involved here.

The extreme take of the majority eased the task here. Again, it might have been reasonable to have re-argument to carefully examine such questions.  Plus, overall, they are obviously touchy. To make a reference to the opening tweet, there is an overhang of religion there.  Anyway, are you ready for more SCOTUS?

ETA: The dissent now moves to the country, including in theory Congress:

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

When the Republicans gained control in 1801, it responded strongly to the Judiciary Act of 1801, including causing a delay of the judgment of Marbury v. Madison.  Republicans in the 1860s controlled the size of the Supreme Court and jurisdiction. So, these things can be done.

But, good luck with the current 50-50 Senate, even if you can convince the thin majority of the House (now with a new Republican, replacing a conservative Democrat who resigned this year). Long term, however, something needs to be done. Short term, the move is trying to win as many seats as you can.  And, I would say, confirm as many judges.

As to the majority opinion, I leave the dissent to answer it.  The only thing I would add is that it simply is unclear what sort of regulation would violate rational basis. Its brief discussion at the end surely does not clarify much.  Kavanaugh cited Rehnquist's comment that a life of the woman exception would be required.  

But, as I noted, how strong would even that be?  The three district court in Roe itself said the law there was vague.