'A woman will have to bear her rapist's child': The liberal SCOTUS justices' blunt dissent to opinion overturning Roe

·Senior Editor
·6 min read

On Friday, when the U.S. Supreme Court overturned Roe v. Wade, the 1973 decision establishing a woman’s constitutional right to an abortion, the three Democratic appointees — Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — wrote a forthright response casting the majority’s decision as a blow to women’s civil rights.

“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” they wrote.

“Today, the Court … says that from the very moment of fertilization, a woman has no rights to speak of,” they continued. “A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”

Citing laws that have already been passed in more conservative states and would now take effect, they warned of dire consequences in states that will now be free to ban abortion without exceptions for rape or incest, or when bringing a pregnancy to term risks the mother’s health.

They also suggested that the reversal of Roe may lead to the revocation of additional constitutional rights that have come from the same line of legal reasoning, including the right to contraception found in Griswold v. Connecticut. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat,” they wrote.

Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor.
Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor in 2021. (Photo illustratioin: Yahoo News; photos: Erin Schaff/The New York Times via AP, Pool)

Here are five key passages from the dissenting opinion:

1. Some states will — in fact, some already have — ban abortion without exceptions.

“[States] have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s — no matter if doing so will destroy her life. So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies — for example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.”

2. Some states will — in fact, some already have — pass laws that punish women who get abortions, or others who get involved in a woman’s pregnancy.

“Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.”

3. Women’s rights are being curtailed, especially those of poorer women.

Abortion rights protesters at a rally in New York City’s Washington Square Park.
Abortion rights protesters at a rally earlier this month in New York City’s Washington Square Park in anticipation of the Supreme Court’s decision to overturn Roe v. Wade. (Jeenah Moon/Reuters)

“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. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. ... As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others — those without money or childcare or the ability to take time off from work — will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.”

4. This may be just the first in a series of decisions that roll back the right to privacy and gender equality.

Demonstrators outside the Supreme Court.
Demonstrators outside the Supreme Court on Thursday. (Valerie Plesch/Bloomberg via Getty Images)

“And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. ... The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history’: 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 majority could write just as long an opinion showing, for example, that until the mid-20th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives].’ ... 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.”

5. The majority argues that women’s rights today should be limited by what the Constitution’s authors thought in a more sexist time.

Abortion rights activists march in Washington, D.C., on June 13.
Abortion rights activists march in Washington, D.C., on June 13. (Valerie Plesch/Bloomberg via Getty Images)

“The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again. ... If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.

As an initial matter, note a mistake in the just preceding sentence. We referred there to the ‘people’ who ratified the Fourteenth Amendment: What rights did those ‘people’ have in their heads at the time? But, of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.

... Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. 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.”

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