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A new Supreme Court justice’s dissent on abortion could be game-changing

With Justice Stephen Breyer’s retirement recently announced, national attention has focused on who President Biden will nominate in keeping his promise to appoint the first Black woman to the Supreme Court. 
Another aspect of Biden’s nomination has received far less attention: A new justice on a lopsidedly conservative court would likely join Justice Sonia Sotomayor in writing dissents speaking to the future. The vital role of dissenting opinions is evident this term, as the Supreme Court is poised to overturn Roe v. Wade by early summer or to weaken it so thoroughly that Roe poses no meaningful barrier to states criminalizing abortion.
Whatever the court decides, this summer’s decision will not be the court’s final word on abortion. As some states rush to ban all or almost all abortion, others will extend abortion rights within their borders. Add to this federal attempts to protect pregnant persons against state bans and to shore up gaps in abortion access, and the legal landscape becomes complex.
Courts, including the Supreme Court, will be asked to weigh in on that post-Roe regulation. Justice Sotomayor appears to be writing with that reality in mind. Indeed, her dissents this past year echo the public alarm about some justices’ seemingly partisan aversion to abortion. 
Perhaps more importantly, the court’s history reveals that today’s powerful dissents may provide the building blocks for a later day’s majority opinions. Key Supreme Court decisions protecting reproductive liberty — including Planned Parenthood v. Casey, which affirmed Roe — relied on Justice John Marshall Harlan’s dissent in a prior case that upheld a state ban criminalizing contraception. In another case, Bowers v. Hardwick, which upheld criminal punishment of same-sex intimacy, Justice John Paul Stevens’s dissent set out the reasons “liberty” protects sexual “intimate choices” by “unmarried persons” as well as married persons. Subsequently, in Lawrence v. Texas, Justice Anthony Kennedy enlisted Stevens’s dissent to overrule Bowers, declaring that Stevens’s analysis should have been adopted by the Bowers majority.
With that dynamic in mind, consider Justice Sotomayor’s dissents in recent abortion cases. In January 2021, the court reinstated a Food and Drug Administration requirement, which a lower federal court had suspended, that patients pick up abortion pills — for home use — at a health care facility instead of receiving them by mail. Justice Sotomayor called the rule “callous” given the restriction’s lived effects: “Patients’ health vulnerabilities, public transportation risks, susceptible older family members at home, and clinic closures and reduced services pose substantial, sometimes insurmountable, obstacles for women seeking medication abortions during the COVID‑19 pandemic.” The rule singled abortion out for “more onerous treatment” than other medical procedures, placing an “unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose” — predominantly, low-income people and people of color. 
Justice Sotomayor’s dissent from the court’s decision to allow only a very narrow challenge to Texas’s six-week abortion ban also called out the severe costs of abortion restrictions. Calling the majority decision “stunning,” she wrote, “The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care [in Texas] after their sixth week of pregnancy. Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.” Grounding constitutional values of liberty and equality in the lived reality of restrictive laws could be the foundation of tomorrow’s constitutional abortion rights.  
Dissents may also speak to the current political moment. This seems evident in Justice Sotomayor’s dissent from the court’s order last month effectively allowing the clearly unconstitutional Texas ban to remain in effect. Her opinion expresses outrage: “This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee. I dissent.” Her dissent makes clear why abortion matters to women’s equality but also signals that there is a reason not to trust that a majority of the Supreme Court will protect their rights.
With the future in mind, what might Justice Sotomayor’s next dissent accomplish?
First, any majority opinion that overturns Roe (and Casey) will likely assert that it is following a line of other significant opinions in which the court overruled bad cases and shaped constitutional law, and the life of the nation, for the better. A dissent could make clear why Roe is not like Bowers. Rather than expanding liberty, overruling Roe would remove a right that millions of people have exercised and constrict the reach of the due process clause.
Second, a dissent could elaborate why abortion rights rest both on liberty and equality and are critical to health. Justice Sotomayor’s abortion dissents could build on Justice Ruth Bader Ginsburg’s insistence, in her dissent from the court’s upholding the federal “partial birth” abortion ban, that abortion restrictions deprived women “of the right to make an autonomous choice, even at the expense of their safety.” In Casey, Ginsburg explained that such autonomy is critical to reproductive self-determination and women’s equal participation. Justice Sotomayor’s dissents highlight how denial of abortion rights fall starkly and disproportionately on women of color, poor women and rural woman: Abortion restrictions are not only an affront to women’s rights but also target those already marginalized by law.
Third, her dissent undoubtedly would give voice to a new generation who values abortion access, providing a touchstone for social action to change laws through the democratic process. Her writings speak to a movement for abortion access that is committed to realizing reproductive justice without Roe and has increasingly turned to state legislation where there is support and to federal interventions.
Although the immediate path ahead is uncertain, arguments advanced in dissent express the values that underpin a political movement for reproductive justice. Such dissents also might lay the groundwork for even more robust protection from a differently configured court.

Rachel Rebouché is the interim dean of Temple University’s Beasley School of Law and the James E. Beasley professor of Law. Linda C. McClain is the Robert Kent professor of Law at Boston University School of Law and author of “Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law.” Follow them on Twitter @RRebouche @ProfLMcClain

Editor’s note: This story was updated to correct the spelling of Justice John Marshall Harlan’s name. 

Tags Abortion Abortion-rights movements Anthony Kennedy Bowers v. Hardwick Constitution of the United States Joe Biden Planned Parenthood v. Casey Ruth Bader Ginsburg Sonia Sotomayor Stephen Breyer Types of abortion restrictions in the United States United States Supreme Court cases

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