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The Supreme Court decision to overturn Roe v. Wade—effectively reversing the landmark 1973 decision that made abortion a constitutionally protected right—may set a dangerous precedent for other rights currently protected by the 14th Amendment. That’s what liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argue in their dissenting opinion.
The court ruled 6-3 in Dobbs v. Jackson Women’s Health Organization, with the majority disavowing both Roe v. Wade and Planned Parenthood v. Casey, a 1992 case that reaffirmed the right to an abortion and established an “undue burden” standard to laws that restrict abortion access.
The majority included justices Samuel Alito and Clarence Thomas, as well as Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts concurred in the judgement only.
“No one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone,” the dissenting justices write. “To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation.”
Those other freedoms grounded in the right to privacy include the ability to purchase and use contraception, as well as the right to same-sex and interracial marriage. “They are all part of the same constitutional fabric, protecting autonomous decision making over the most personal of life decisions,” the opinion continues.
Though the majority argued that rights related to privacy will not be implicated because of Roe and Casey‘s reversals, Chief Justice Roberts wrote in his concurring opinion that the court “should reconsider” past rulings on contraception, same-sex marriage, and interracial marriage.
Breyer, Sotomayor, and Kagan heavily criticized the majority’s rationale.
“Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with,” the opinion reads. “So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
They concluded the opinion, “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
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