The Dobbs dissent coauthored by Justices Breyer, Sotomayor, and Kagan is so laden with appeals to emotion that extracting the legal arguments can be challenging. For example, the introduction is mostly about abortion-related policy outcomes that the dissenting justices fear and detest. Rather than simply outline their argument, the dissenters invite the reader to fear and detest those policies along with them.
Nevertheless, the dissent’s bottom line is clear: “Roe and Casey were correct.” This is a bit surprising, since the reasoning in Roe has a poor reputation even among some progressives, including the late Justice Ginsburg. I expected the dissenters to focus mainly on the importance of following precedent, perhaps with their own justifications for the right to an abortion mixed in. In attempting to directly defend Roe, however, they re-affirm for me not only how indefensible that particular decision was, but also how imperious the whole “living Constitution” project continues to be.
The dissenters first say that Roe “struck a balance” between women’s autonomy and the protection of fetal life. Leave aside that this “balance” allowed abortions in almost all cases in which women desired them. The more important question is why there should be any balance imposed by judges at all. The alleged virtue of Roe’s “balance” is question-begging — it pre-supposes a Constitutional right to abortion when that is the whole issue under debate.
As for where that right comes from, the dissent acknowledges that the ratifiers in 1868 did not understand the Fourteenth Amendment to confer any right to abortion. But that’s okay, the dissent says, because there are “new societal understandings” that have developed since then, and the ratifiers would have wanted the judiciary to recognize new rights based on these new understandings.
That sounds like a conveniently broad license for judges! Now, it is one thing to say, as the Kavanaugh concurrence appropriately does, that original principles should be applied to new situations – for example, the Fourth Amendment protects computer files from unreasonable searches and seizures, even though computer files did not exist at the founding. It is quite another thing to claim that judges may interpret Constitutional provisions in a way that directly conflicts with the understanding of the ratifiers — who were, after all, well aware of abortion yet never made any intimation that the Fourteenth Amendment speaks to it.
Since their interpretive method seems awfully subjective, the dissenters try to assure us it “does not mean anything goes.” They proceed to cite further platitudes about “fundamental commitments” and “the long sweep of our history” that are supposedly constraining, but it’s obvious that those sentiments mean whatever judges want them to mean. They are little more than the vehicle by which judges insert the values of the lawyer class into the Constitution.
Of course, I did not expect any of the three dissenters to sign on to an opinion that fully returns the abortion issue to the states. I did hope, however, that their dissent would repudiate some of the excesses of their activist predecessors. They could have grounded their dissent primarily in stare decisis, allowing that Roe was not the decision they would have written. Instead, they double down on the purest living constitutionalism, affirming that judges need only incant phrases such as “sphere of liberty” in order to create new Constitutional principles. Sadly, that is what we must expect from the Court’s progressive justices going forward. May they remain in the minority as long as possible.