Page:Dobbs v. Jackson Women's Health Organization.pdf/173

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DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION

Breyer, Sotomayor, and Kagan, JJ., dissenting

in this very case. See ante, at 7 ("[T]his case does not present the opportunity to reject" those precedents). But he lets us know what he wants to do when they are. "[I]n future cases," he says, "we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." Ante, at 3; see also supra, at 25, and n. 6. And when we reconsider them? Then "we have a duty to overrul[e] these demonstrably erroneous decisions." Ante, at 3. So at least one Justice is planning to use the ticket of today's decision again and again and again.

Even placing the concurrence to the side, the assurance in today's opinion still does not work. Or at least that is so if the majority is serious about its sole reason for overturning Roe and Casey: the legal status of abortion in the 19th century. Except in the places quoted above, the state interest in protecting fetal life plays no part in the majority's analysis. To the contrary, the majority takes pride in not expressing a view "about the status of the fetus." Ante, at 65; see ante, at 32 (aligning itself with Roe's and Casey's stance of not deciding whether life or potential life is involved); ante, at 38–39 (similar). The majority's departure from Roe and Casey rests instead—and only—on whether a woman's decision to end a pregnancy involves any Fourteenth Amendment liberty interest (against which Roe and Casey balanced the state interest in preserving fetal life).[1]


  1. Indulge a few more words about this point. The majority had a choice of two different ways to overrule Roe and Casey. It could claim that those cases underrated the State’s interest in fetal life. Or it could claim that they overrated a woman's constitutional liberty interest in choosing an abortion. (Or both.) The majority here rejects the first path, and we can see why. Taking that route would have prevented the majority from claiming that it means only to leave this issue to the democratic process—that it does not have a dog in the fight. See ante, at 38–39, 65. And indeed, doing so might have suggested a revolutionary proposition: that the fetus is itself a constitutionally protected "person," such that an abortion ban is constitutionally mandated. The majority therefore chooses the second path, arguing that the Fourteenth Amendment does not conceive of the abortion decision as implicating liberty, because the law in the 19th century gave that choice no protection. The trouble is that the chosen path—which is, again, the solitary rationale for the Court's decision—provides no way to distinguish between the right to choose an abortion and a range of other rights, including contraception.