The three dissenters will be writing both for the general public and for posterity. My guess is that there will be three separate opinions. The key questions for them are:
- HOW FAR SHOULD WE TAKE THE POLITICAL HACK ARGUMENT? I will predict that Sotomayor will pull no punches. The others will be more circumspect, not wishing to burn their bridges with the “conservatives” or inflict damage on the Court.
- DO WE RELY ON THE ROE ANALYSIS OR THE GINSBURG EQUAL PROTECTION ARGUMENT? The former is the current law; the latter has more popular appeal and may be more compelling. The problem with equal protection, however, is that it logically leads one to the conclusion that the state has no right to regulate abortion at any stage of gestation. That won’t fly with a public that mostly wants some sort of reasonable compromise on the issue.
I think we will see more equal protection than right of privacy in the dissents, although there will be some of both.