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The Supreme Court's majority and dissent opinions on Dobbs reveal a massive schism

A group photo of the justices at the Supreme Court in Washington on April 23, 2021. Seated from left: Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer and Sonia Sotomayor. Standing from left: Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett.
Erin Schaff
/
AFP via Getty Images
A group photo of the justices at the Supreme Court in Washington on April 23, 2021. Seated from left: Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer and Sonia Sotomayor. Standing from left: Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett.

Supreme Court Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote a searing dissent to the court's decision to end Roe v. Wade and overturn the constitutional right to an abortion.

They were responding to views set forth by Justice Samuel Alito, who wrote the majority opinion, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives," the court stated in a syllabus included with its lengthy Dobbs v. Jackson Women's Health Organization decision.

The dissent vehemently disagrees — and it warns that other Supreme Court precedents securing "settled freedoms involving bodily integrity, familial relationships, and procreation" may now be in danger, such as rulings backing contraception rights and same-sex marriage.

Majority: Roe decision was an error

The Roe decision was "egregiously wrong and on a collision course with the Constitution from the day it was decided," the court's syllabus states.

In his opinion, Alito writes that the 1973 ruling ended a political process in which states had for years crafted their own stances on abortion. "It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State," Alito wrote.

Justices in the majority compared the situation to the court's historic overruling of its Plessy v. Ferguson, which backed the racist "separate but equal" doctrine until it was undone by Brown v. Board of Education.

Dissent: The majority betrayed guiding principles

The dissent accuses the court of betraying its guiding principles while relegating women to second-class citizenship. It also questions the majority's reasoning, saying the Dobbs decision will place an extreme burden on low-income pregnant people.

"Whatever the exact scope of the coming laws, one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens," the dissent states.

Breyer, Sotomayor and Kagan say the court's ruling discards a balance set by past abortion decisions. "It says that from the very moment of fertilization, a woman has no rights to speak of," they said.

The three liberal justices also say the precedent was struck down not because of new scientific developments or societal changes, but due to changes in the makeup of the Supreme Court itself.

Majority: Mississippi's Gestational Age Act is justified

When the Supreme Court granted Mississippi officials' request to hear the case, it limited itself to one question: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."

Alito says the court looked at several issues in deciding the case, including "whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents."

He wrote that the Roe decision "was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned."

A state's law regulating abortion "must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests," Alito wrote. Those interests include "respect for and preservation of prenatal life at all stages of development," he added, along with protecting "maternal health and safety" and other issues, such as preserving "the integrity of the medical profession" and the "mitigation of fetal pain."

"These legitimate interests justify Mississippi's Gestational Age Act," Alito wrote.

Dissent: 'Dobbs' ruling sees women as second-class citizens

The dissenting justices attack what they call the majority justices' "core legal postulate" — that the framers of the 14th Amendment didn't see reproductive rights as central to freedom, and therefore those rights shouldn't have constitutional protection today.

Those ratifiers were all men, the dissent notes.

"So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women's liberty," the dissent reads.

"When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship," it continues.

Majority: Women can work to influence state laws

By reinvesting states with the authority to decide whether most abortions should be illegal, the opinion "allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office," Alito wrote.

"Women are not without electoral or political power," he said. "It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so."

Alito also sought to limit interpretation of the decision, stating, "we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

Dissent: Are decisions on contraception and same-sex marriage next?

The dissent warns that a broader collapse of rights is possible, comparing the majority's extraction of a right from the constitutional edifice to pulling a stick out of a Jenga tower.

"Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other," the justices wrote.

The dissent warns the decision in this case could be used to challenge other cases involving individual freedoms, including the right to use contraception and the right to marry a same-sex partner.

"We fervently hope that does not happen because of today's decision. We hope that we will not join Justice Scalia in the book of prophets. But we cannot understand how anyone can be confident that today's opinion will be the last of its kind."

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Bill Chappell is a writer and editor on the News Desk in the heart of NPR's newsroom in Washington, D.C.
Nell Clark is an editor at Morning Edition and a writer for NPR's Live Blog. She pitches stories, edits interviews and reports breaking news. She started in radio at campus station WVFS at Florida State University, then covered climate change and the aftermath of Hurricane Michael for WFSU in Tallahassee, Fla. She joined NPR in 2019 as an intern at Weekend All Things Considered. She is proud to be a member of NPR's Peer-to-Peer Trauma Support Team, a network of staff trained to support colleagues dealing with trauma at work. Before NPR, she worked as a counselor at a sailing summer camp and as a researcher in a deep-sea genetics lab.