Breyer, Sotomayor and Kagan, JJ. dissenting
the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.) Today's decision, the majority first says, "does not undermine" the decisions cited by Roe and Casey—the ones involving "marriage, procreation, contraception, [and] family relationships"—"in any way." Ante, at 32; Casey, 505 U. S., at 851. Note that this first assurance does not extend to rights recognized after Roe and Casey, and partly based on them—in particular, rights to same-sex intimacy and marriage. See supra, at 23.[1] On its later tries, though, the majority includes those too: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." Ante, at 66; see ante, at 71–72. That right is unique, the majority asserts, "because [abortion] terminates life or potential life." Ante, at 66 (internal quotation marks omitted); see ante, at 32, 71–72. So the majority depicts today's decision as "a restricted railroad ticket, good for this day and train only." Smith v. Allwright, 321 U. S. 649, 669 (1944) (Roberts, J., dissenting). Should the audience for these too-much-repeated protestations be duly satisfied? We think not.
The first problem with the majority's account comes from Justice Thomas's concurrence—which makes clear he is not with the program. In saying that nothing in today's opinion casts doubt on non-abortion precedents, Justice Thomas explains, he means only that they are not at issue
- ↑ And note, too, that the author of the majority opinion recently joined a statement, written by another member of the majority, lamenting that Obergefell deprived States of the ability "to resolve th[e] question [of same-sex marriage] through legislation." Davis v. Ermold, 592 U. S. ___, ___ (2020) (statement of Thomas, J.) (slip op., at 1). That might sound familiar. Cf. ante, at 44 (lamenting that Roe "short-circuited the democratic process"). And those two Justices hardly seemed content to let the matter rest: The Court, they said, had "created a problem that only it can fix." Davis, 592 U. S., at ___ (slip op., at 4).
