We discussed the majority opinion before. After reading the concurring opinions and the dissent, my TL;DR:
Thomas concurs and basically argues the concept of substantive due process is a piece of shit and that it should be thrown out the window. I think legally that argument is not entirely ridiculous, though it is wrong imo to apply it to the US constitution and in any case, decades of precedent should disqualify it. But hey, fuck precedent amirite?
... the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”
... in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents
(Griswold, Lawrence and Obergefell are the rulings that enshrine the right to contraceptives and same-sex marriage).
So he disagrees with the majority in that he does think those precedents should be overruled as well, whereas the majority claims they are not under threat because they are "fundamentally different" from the Roe decision (an argument we identified as ridiculous before ITT).
I have to hand it to Thomas: He simply follows the majority opinion to its natural conclusion.
Kavanaugh concurs and is basically being a good conservative originalist boy. Nothing surprising in his opinion. As a reason to ignore the precedent he says the following:
Of course, the fact that a precedent is wrong, even egregiously wrong, does not alone mean that the precedent should be overruled. But as the Court today explains, Roe has caused significant negative jurisprudential and realworld consequences. By taking sides on a difficult and contentious issue on which the Constitution is neutral, Roe overreached and exceeded this Court’s constitutional authority; gravely distorted the Nation’s understanding of this Court’s proper constitutional role; ...
... which is the same kind of originalist reasoning we found in the majority opinion.
Roberts' opinion is more interesting. He argues, convincingly imo, that only the viability line (Roe drew the line at viability, allowing states to ban abortion post-viability) should have been in question here. He argues that the viability line makes no sense, which I have no opinion about but could probably be convinced of, but that removing this arbitrary line would have been enough to solve this case without having to overturn decades of precedent.
In urging our review, Mississippi stated that its case was “an ideal vehicle” to “reconsider the bright-line viability rule,” and that a judgment in its favor would “not require the Court to overturn” Roe v. Wade, ...
Today, the Court nonetheless rules for Mississippi by doing just that. I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense.
... whether to retain the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is regarded as “viable” outside the womb. I agree that this rule should be discarded.
If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.
Roberts brings up another interesting point, arguing that the court basically got played by the state of Mississippi:
When the State petitioned for our review, its basic request was straightforward: “clarify whether abortion prohibitions before viability are always unconstitutional.” Pet. for Cert. 14. The State made a number of strong arguments that the answer is no, id., at 15–26—arguments that, as discussed, I find persuasive. And it went out of its way to make clear that it was not asking the Court to repudiate entirely the right to choose whether to terminate a pregnancy: “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.” Id., at 5. Mississippi tempered that statement with an oblique one-sentence footnote intimating that, if the Court could not reconcile Roe and Casey with current facts or other cases, it “should not retain erroneous precedent.” Pet. for Cert. 5–6, n. 1. But the State never argued that we should grant review for that purpose.
After we granted certiorari, however, Mississippi changed course. In its principal brief, the State bluntly announced that the Court should overrule Roe and Casey. The Constitution does not protect a right to an abortion, it argued, and a State should be able to prohibit elective abortions if a rational basis supports doing so. See Brief for Petitioners 12–13.
The Court now rewards that gambit, ...
Dissenters
Breyer, Sotomayor, and Kagan
Their opinion is pretty scathing, its language often betraying a deep dissatisfaction with the direction the court is taking.
There's the obvious contradiction in the majority opinion that even we ESOC plebs identified:
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. Ante, at 32. 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].” Ante, at 15. 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 mid19th century are insecure.
According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even “undermine”—any number of other constitutional rights. Ante, at 32.8 Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor. Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to-explain lines. Rights can expand in that way.
I found the second bolded part funny; It seems like the dissenters are taking a subtle dig at originalist interpretation of the constitution, even while arguing a different point.
An example of the language showing the dissenters are pretty mad:
Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once.
They go on to argue that Roe and Casey were ultimately compromising decisions (attempting to find a balance between the state's interests and the pregnant woman's interests) and that the majority opinion throws balance and compromise out the window and is one-sided.
Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).
Then they get to what I think is the most important argument of their dissent, which came up ITT before and I agree with.
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. See ante, at 47 (“[T]he most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted”); see also ante, at 5, 16, and n. 24, 23, 25, 28. 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. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788 — did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. 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) [this is a dig at the majority opinion invoking 13th century views on abortion rights], it consigns women to second-class citizenship.
...
So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny? How is it that our Constitution, through the Fourteenth Amendment’s liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for themselves whether and when to bear a child? How is it that until today, that same constitutional clause protected a woman’s right, in the event contraception failed, to end a pregnancy in its earlier stages?
The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution. “The Founders,” we recently wrote, “knew they were writing a document designed to apply to ever-changing circumstances over centuries.” NLRB v. Noel Canning, 573 U. S. 513, 533–534 (2014). Or in the words of the great Chief Justice John Marshall, our Constitution is “intended to endure for ages to come,” and must adapt itself to a future “seen dimly,” if at all. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.
They then spend a lot of pages convincingly arguing why precedent should have been followed in this case. Something they and Roberts are in agreement about.
Pretty long for a TL;DR so I guess I should include a
TL;DR of the TL;DR:
- Majority opinion is a piece of shit (we already knew this).
- Dissenters make a convincing case.
- At its core, a debate between originalist and "living document" (or at least going in that direction) interpretations of the constitution.
- Thomas is excited about the court's future.
- Kavanaugh might as well not have written an opinion.
- Roberts almost agrees with the dissent more than with the majority, despite his official position.