Carlos Lozada is the nonfiction book critic of The Washington Post and the author of "What Were We Thinking: A Brief Intellectual History of the Trump Era." He won the Pulitzer Prize for criticism in 2019.
July 1, 2022 at 8:05 p.m. EDT
Supreme Court opinions are a series of legal interpretations, a catalogue of rights recognized, affirmed or withdrawn. But they are also markers of a culture forever in flux, a record of how different courts and different eras have wielded influence, viewed the past and understood the national moment.
Such is the case with the pivotal abortion decisions of the last half-century: Roe v. Wade (1973), which affirmed the right to abortion nationwide, Planned Parenthood v. Casey (1992), which accepted stricter limits on the practice while reasserting Roe’s central holding, and now Dobbs v. Jackson Women’s Health Organization, which overturns the prior two decisions and leaves the regulation of abortion to state legislatures. The various rulings and dissents reveal divergent readings of history, conflicting perceptions of the role and agency of women, even contrasting attitudes toward philosophy and human nature.
Perhaps most striking, the recriminations, accusations and counterclaims found in these documents also showcase an institution that was politicized long before a draft opinion of Dobbs was leaked to Politico in May. In his Roe dissent, Justice William Rehnquist acknowledged the majority opinion’s historical inquiry and legal scholarship; despite his disagreements, he wrote, the opinion “commands my respect.” Such niceties disappear from subsequent court decisions. The plurality opinion that decided Casey warned that overruling Roe could constitute a “surrender to political pressure” that would undermine the court’s legitimacy; one justice even wrote of his “fear for the darkness” if his four colleagues who opposed Roe ever found one more vote. One of those four justices, in his own Casey dissent, disparaged the plurality’s “almost czarist arrogance.”
Now, with Dobbs, even these characterizations seem genteel. Different factions of the high court accuse one another and their predecessors of incompetence, duplicity, hypocrisy, and untruth. The Dobbs majority opinion, authored by Justice Samuel Alito, dismisses Roe as an “elaborate scheme” that was “concocted” to divine a constitutional right, and assails the 1973 decision with adverbial abandon, calling it “egregiously wrong,” “exceptionally weak” and “deeply damaging.” And while the Dobbs majority asserts that Roe’s grasp of history “ranged from the constitutionally irrelevant. . . to the plainly incorrect,” it nonetheless makes selective use of U.S. history and tradition, and takes refuge in portions of the very rulings it has now overturned.
Thedissent, meanwhile, denounces the majority for betraying its principles and letting personal proclivities overpower the rule of law, and derides the majority’s history lectures as “wheel-spinning” and “window dressing.” With Dobbs,the dissent states, “the court departs from its obligation to faithfully and impartially apply the law,” a conclusion it offers not with respect but, in its own words, “with sorrow.”
Throughout these competing judgments and dissents, the justices bemoan how their opponents on the court have given in to insidious political impulses and pressures, whereas they alone remain uncorrupted. It is almost hard to remember that, at the outset of its opinion, the Roe majoritydeclared that “our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.” Subsequent opinions are rife with both. If Supreme Court rulings indeed double as cultural artifacts, then it is fitting that the court has come to reflect the ideological division and political expedience of our time.
The justices sound just like the rest of us, even though their battles matter so much more.
One of the sharpest divides in the Supreme Court’s abortion rulings is over history — what the record shows, what aspects are most relevant, and to what extent history should matter at all in determining the limits or existence of a constitutional right.
The majority opinion in Roe attempts to normalize legal abortion as part of the American story, with mixed results. It began by surveying the laws of ancient Greece and Rome (including the Hippocratic oath’s admonition against “an abortive remedy”) as well as English common law, concluding that “it now appear[s] doubtful that abortion was firmly established as a common law crime.” The opinion highlighted the distinction between abortions carried out before so-called quickening — the first recognizable movements of the fetus — and those conducted later. It noted that the 1821 law barring abortion in Connecticut, the first state to enact such legislation, regarded post-quickening abortion as manslaughter but an earlier abortion only as a misdemeanor. After the Civil War, statutes regulating abortion proliferated, and by the mid-20th century, the Roe majority acknowledged, “a large majority of the jurisdictions” banned the procedure other than to save the life of the woman. Nonetheless, the opinion concluded, for a “major portion” of the 19th century “a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.”
That history reads differently through different eyes. In his Roe dissent, Rehnquist also cited the Connecticut law, but he did so to emphasize the existence, not the leniency, of early 19th-century abortion restrictions. And while the Roe majority found the right to an abortion in the 14th Amendment’s due process clause, Rehnquist chided his colleagues for disregarding the intent of the drafters. When the 14th Amendment was adopted in 1868, he recounts, legislatures across the country had already enacted dozens of laws limiting abortion, and those provisions went unquestioned when the amendment went into effect. “The only conclusion possible from this history,” the future chief justice reasoned, “is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” A partial dissent in Casey, authored by Rehnquist and joined by Justices Byron White, Antonin Scalia and Clarence Thomas, reiterated how an “overwhelming majority” of states restricted abortion by 1973, and argued that “the historical traditions of the American people” do not support abortion as a fundamental right.
Such parsing of tradition is a critical exercise in Dobbs because, the majority argues, rights not explicitly mentioned in the Constitution must be “deeply rooted” in U.S. history and tradition. Reading the various opinions thus feels like attending seminars by professors whose views of the world are irreconcilable and whose assigned readings barely overlap. The Dobbs majority opinion writes that its counterparts in Roe “ignored or misstated” the real history of abortion and promises to “set the record straight.” For example, Alito’s opinion asserts that the legal distinction between pre- and post-quickening abortions cited in Roe does not matter “because the rule was abandoned in the 19th century.” And even if pre-quickening abortions were not criminalized, that “does not mean that anyone thought the States lacked the authority to do so.” It is a deft move by the majority: It picks the period it prefers to represent tradition, and when traditions sneak off course, the majority reminds that states still could have shaped the era differently. And so tradition endures.
The justices also part company on the impact of the Supreme Court’s past abortion decisions — that is, on the history of the court itself. The plurality opinion in Casey looked back with an excess of satisfaction on Roe as a rare moment when the court was able to “resolve” an antagonistic debate, calling on “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” In his partial dissent in Casey, Scalia scoffed at this “unrecognizable” account of U.S. social history. Not only did Roe fail to resolve the abortion debate, Scalia emphasized, “it did more than anything else to nourish it.”
But after chastising the Casey opinion for gazing upon the politics of the post-Roe era so favorably, Scalia did much the same for the pre-Roe years, regarding them as a more tranquil and stable time when “national politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress,” and state-by-state political compromises remained possible. “To portray Roe as the statesmanlike ‘settlement’ of a divisive issue,” he wrote, “is nothing less than Orwellian.”
At times themajority in Dobbs overreaches in its attacks on Roe’s vision of history, in ways that are small and unnecessary. For instance, it quotes the Roe majority opinion as supposedly implying that 19th century state laws against abortion in the United States emerged from a “Victorian social concern” regarding “illicit sexual conduct” rather than over the desire to protect fetal life. The Roe majority did mention that idea as an occasional explanation for such laws but immediately repudiated it, writing that “no court or commentator has taken the argument seriously.” Except for Alito, who 49 years later resurrected the passage to discredit Roe.
More consequentially, the Dobbs majority asserts that its ruling returns the abortion debate to the state level, where it belongs and where it had long been until Roe showed up and ruined everything. “For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens,” the majority asserts. Of course, for many of those years, those considered full citizens of the nation were a much more limited set. “The men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens,” the Dobbs dissent reminds, charging that, “because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today.”
When the Supreme Court ruled on Roe, all nine justices were men; with Casey, eight of the nine were men; in the Dobbs decision, the court has three women and six men. The various opinions and dissents do not break down neatly along gender lines, but they do reveal much about how the high court has viewed women over the past half-century — sometimes as less able to think for themselves and, thus, requiring special protection from their own bad choices, and sometimes as so empowered that additional protection was no longer necessary.
The Roe majority highlighted the harm inflicted upon women when they are denied the choice of continuing or ending their pregnancies, whether medical and psychological injury or the “continuing stigma of unwed motherhood.” In Casey, the plurality opinion asserted that women are defined by far more than motherhood — no matter how long that vision has permeated American society — and that in the two decades since Roe, women had come to rely on the right the 1973 ruling enshrined. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” Justices Sandra Day O’Connor, Anthony Kennedy and David Souter contended.
Even while upholding the right to abortion, the Casey plurality opinion betrayed some condescension toward women intending to exercise their choice. One of the provisions in the Pennsylvania law contested in Casey was a requirement that pregnant women seeking abortions have access to printed materials describing fetal development and offering details on adoption agencies, medical assistance available for childbirth and child-support requirements for fathers. This provision, O’Connor, Kennedy and Souter concluded, supported the “legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” They deemed another provision requiring a 24-hour delay before the abortion is carried out to be a “reasonable measure.”
In his partial concurrence and partial dissent in Casey, Justice John Paul Stevens argued persuasively that such compromises embodied “outmoded and unacceptable assumptions” about the ability of women to make their own decisions, and that “States may not presume that a woman has failed to reflect adequately merely because her conclusion differs from the State’s preference.” (Indeed, nowhere does the Casey opinion mention a parallel proposal requiring that women choosing to continue their pregnancies receive detailed information on possible complications during childbirth, health risks for a newborn or the average lifetime costs of raising children.)
Rehnquist, Scalia, White and Thomas countered that the Casey plurality opinion was “unconvincing” when asserting that women had come to rely on the abortion rights enshrined in Roe. “Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe,” they argued, “rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.” Their logic seemed to be that women had progressed so much that the additional right of abortion is superfluous, and, incidentally, that the power to decide when or whether to have children is irrelevant to competing in the employment marketplace.
The plurality opinion in Casey acknowledged that it could not quantify the extent of Americans’ reliance on Roe, but it figured it was significant and could not be dismissed. The four joint dissenters agreed that reliance upon Roe could not be easily specified, so chose not to try. “The joint opinion’s assertion of this fact is undeveloped and totally conclusory,” they wrote, and is “based solely on generalized assertions about the national psyche.”
The Dobbs majority likewise looks back on the question of women’s reliance on Roe and decides that the court “has neither the authority nor the expertise” to settle the matter. But it adds one more reason why establishing a generalized reliance on Roe is difficult: Women are all just so different. Abortion regulations can have disparate effects on women depending on their “places of residence, financial resources, family situations, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions.” Where women differ little, apparently, is in their political clout. Now that Dobbs has returned abortion rights to state legislatures, women on any side of the abortion dispute can shape their futures by voting, lobbying lawmakers or running for office themselves. “Women are not without electoral or political power,” the Dobbs majority reassures.
Consider the logic: Because the right to an abortion was not part of the American tradition back when women lacked political power, it cannot be a constitutional right today. And it need not be a constitutional right today because women, deprived of the right, at least still have the power to ask for it back.
The Roe majority held that the government has two legitimate interests regarding abortion rights. First is that abortion be performed safely for the patient, and second is the state’s interest in “protecting prenatal life.” The majority did not attempt to settle the question of when life begins but, rather, accepted that the latter interest is real because at least “potential life” is involved. Much of the court’s debate over abortion in the past 50 years has centered on how those interests come into conflict and when one overrides the other.
In Dobbs, that trade-off is crystallized in two nearly identical sentences, one in the majority opinion and the other in the dissent. “The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life,” the majority opinion declares. Later, deep in their dissent, the opposing justices toss that sentiment back at the majority, almost mockingly, adding quotation marks to make sure someone notices. “ ‘The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women.”
Yes, this is how a dissent briefly lapses into a diss. Even so, the passages highlight the two sides’ competing priorities. The Dobbs majority claims that it takes no position on when life begins or when prenatal life acquires rights, but it laments that the dissenters “regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.” The dissent, for its part, praises the “balance” that Roe and Casey brought to the competing interests, and laments “how little [the majority] knows or cares about women’s lives or about the suffering its decision will cause.”
The dissenters also worry that, given the logic of Dobbs, constitutional guarantees such as the right to contraception or to same-sex marriage may also be at risk. After all, they too may be insufficiently “rooted in history” to hold up. The majority insists, repeatedly, that only abortion is at issue here — and that abortion is “fundamentally different” from the other rights because it “uniquely involves what Roe and Casey termed ‘potential life.’ ” (Note the irony of the Dobbs majority repeatedly citing Roe and Casey, the two decisions it is overturning, to help explain why it will not do the same to additional precedents.) The majority seems exasperated, even insulted, by the suspicion that other rights could be in jeopardy. “It is hard to see how we could be clearer,” Alito writes.
It’s not that hard. Simply reiterating today that abortion is “different” does not preclude future iterations of the court from employing the Dobbs blueprint to conclude otherwise. In his concurring opinion in Dobbs, Justice Brett Kavanaugh promises that Supreme Court decisions allowing contraception, interracial marriage and same-sex marriage are all still safe. “I emphasize what the Court today states,” Kavanaugh assures. “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” Perhaps Kavanaugh’s use of italics is meant to convey seriousness of purpose — a sort of jurisprudential pinkie swear — but its already slight impact is lessened when one of the majority’s signatories lays out a separate opinion targeting some of those other rights by name.
Justice Thomas, who joined the majority opinion, nonetheless declares that the court “should reconsider” some of the “demonstrably erroneous” Supreme Court opinions on same-sex marriage, contraceptive use and gay sex — precedents that Kavanaugh and the majority insist are not in play. Thomas also appears forthright about how his personal beliefs and judicial assessments intermingle, ending his concurring opinion by citing the “immeasurable” harm of 63 million abortions carried out since 1973, according to a fact sheet from the National Right to Life Committee. If Alito argues by adverb and Kavanaugh argues by italics, Thomas seems to argue by Thomas — he cites himself 21 times in a seven-page opinion, a true testament to his judicial self-regard. The dissent in Dobbs highlights Thomas’s opinion (“at least one Justice is planning to use the ticket of today’s decision again and again and again”), but the Dobbs majority opinion keeps its distance from it, although though it contradicts the majority’s assurances. No matter. Even if Thomas does not find support on the court, his constituency and audience may reside elsewhere.
In all three cases, the decisive opinions acknowledge the complexity and divisiveness of abortion in American life. “Abortion presents a profound moral issue on which Americans hold sharply conflicting views,” Alito begins in Dobbs. The Roe majority acknowledged “our awareness of the sensitive and emotional nature of the abortion controversy . . . and of the deep and seemingly absolute convictions that the subject inspires.” The Casey plurality was the most contemplative. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” it stated, adding that, on abortion, “reasonable people will have differences of opinion.”
It is inevitable, perhaps, the cases of this sort elicit such pondering of life and human nature. Nonetheless, in his partial dissent in Casey, Scalia could not resist ridiculing his colleagues’ philosophizing. Scalia concluded that abortion is not a protected right “not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life’ ” but, rather, because “the Constitution says absolutely nothing about it, and [because] the longstanding traditions of American society have permitted it to be legally proscribed.” In his Dobbs opinion 30 years later, Thomas also criticized the Casey reflections as overly “ethereal,” while the Dobbs majority opinion says that it’s fine for people to think whatever they wish about the universe and the rest, they just can’t always act “in accordance with those thoughts.” In other words, enough with the big think — this question is straightforward enough.
One of the justices today seems more willing to wrestle with his thoughts, to engage for a moment in uncertainty, even ambiguity. In his separate Dobbs opinion, Chief Justice John Roberts Jr. agrees with the court’s decision to uphold the Mississippi law at issue in thecase — which prohibits abortions past 15 weeks into a pregnancy — but does not see the need to overturn Roe and Casey. He proposes accepting the 15-week limit while still upholding the constitutional right to abortion, on the grounds that such a time frame provides “an adequate opportunity to exercise the right Roe protects.” Better to reach a narrower conclusion, Roberts suggests, and leave the larger decisions “for another day.”
It is a compromise that satisfies no one. The Dobbs majority is dismissive, stating that the chief justice’s middle ground “would only put off the day when we would be forced to confront the question we now decide.” Of course, that is precisely Roberts’s objective. He does not pretend to have the ultimate answer; he would rather change the question. “I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks,” he writes. Roberts is willing to wallow in the in-between spaces that are prohibited in the political and legal debates over abortion; he is a Casey kind of guy in a Dobbs world. The dissenting justices in Dobbs treat him with only slightly more kindness, noting in a parenthetical near the end of their dissent that “we believe that the Chief Justice’s opinion is wrong too,” but adding that they agree there is indeed a large difference between a ban at conception and one beginning at fifteen weeks.
“Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share,” the chief justice writes. Except doubt is not popular, and self-doubt even less so. It is a sign of how the court has become one more political battleground that the chief justice is left flailing and lonely in the institution over which he nominally presides, and that somewhere between the dismissiveness of the majority and the parenthetical of the dissent reside the remnants of a possible, but doomed, compromise. Roberts’s failure is not in the specifics of his proposal or the logic of his argument. It is in daring to hope that in this moment and with this court and in this country, such an outcome ever had a chance.