The presence of these individuals on the court is the culmination of a decades-long effort by anti-abortion and other right-wing forces to remake the court into a regressive bulwark. This has never been a secret; and with the help of the Senate under Mitch McConnell, former president Donald Trump and allies in the conservative legal movement, they have succeeded.
The central logic of the Dobbs ruling is superficially straightforward, and the opinion is substantially the same as the draft Justice Alito distributed to the other justices in February, which was leaked to the press last month. Roe and Casey must be overruled, the ruling says, because “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” including the 14th Amendment’s guarantee of due process. While that provision has been held to guarantee certain rights that are not mentioned explicitly in the Constitution, any such right must be “deeply rooted in this nation’s history and tradition.”
By the majority’s reasoning, the right to terminate a pregnancy is not “deeply rooted” in the history and tradition of the United States — a country whose Constitution was written by a small band of wealthy white men, many of whom owned slaves and most, if not all, of whom considered women to be second-class citizens without any say in politics.
The three dissenters in the Dobbs case — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — called out the majority’s dishonesty, noting that its exceedingly narrow definition of “deeply rooted” rights poses a threat to far more than reproductive freedom. The majority’s denial of this is impossible to believe, the dissenters wrote, saying: “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.”
In other words, the court is not going to stop at abortion. If you think that’s hyperbole, consider Justice Clarence Thomas’s concurring opinion in Dobbs, in which he called for the court to reconsider other constitutional rights that Americans have enjoyed, in some cases, for decades — including the right to use birth control, the right to marry the person of their choosing and the right of consenting adults to do as they please in the privacy of their bedrooms without being arrested and charged with crimes. These rights share a similar constitutional grounding to the now-former right to abortion, and Justice Thomas rejects that grounding, calling on the court to “eliminate it … at the earliest opportunity.”
This position may not command a majority of justices today, but six years ago, few people thought Roe v. Wade would be overturned. Brett Kavanaugh, during his confirmation hearing in 2018, said Roe v. Wade “is important precedent of the Supreme Court that has been reaffirmed many times.” He added: “Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
