My introduction on the SCOTUS decision
I’m not going to run this SCOTUS decision thru my filter and ‘tell you what it means’ cos I ain’t CNN+.
Here’s the decision, cleaned up, without footnotes, almost all citations, appendixes, and with nonsubstantial edits for formatting and so as to be usable in its audio format
You be the judge.
SCOTUS RULING. Dobbs decision. Justice Alito delivered the opinion of the Court
THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS v JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
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. Then, in 1973, this Court decided Roe v. Wade.
Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant e.g its discussion of abortion in antiquity to the plainly incorrect e.g its assertion that abortion was probably never a crime under the common law. After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.
Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability,” i.e the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end ed up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave “almost no sense of an obligation to try to be.”
At the time of Roe, States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” and it sparked a national controversy that has embittered our political culture for a half century.
Eventually, in Planned Parenthood of Southeastern Pa. v. Casey, the Court revisited Roe, but the Members of the Court split three ways. Two Justices expressed no desire to change Roe in any way. Four others wanted to overrule the decision in its entirety. And the three remaining Justices, who jointly signed the controlling opinion, took a third position. Their opinion did not endorse Roe’s reasoning, and it even hinted that one or more of its authors might have “reservations” about whether the Constitution protects a right to abortion. But the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe’s “central holding”—that a State may not constitutionally protect fetal life before “viability”—even if that holding was wrong. Anything less, the opinion claimed, would undermine respect for this Court and the rule of law.
Paradoxically, the judgment in Casey did a fair amount of overruling.
Several important abortion decisions were overruled in toto, and Roe itself was overruled in part. Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion. The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call ed the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.
As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.
Before us now is one such state law. The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is now regarded as “viable” outside the womb. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so. Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, “would be no different than overruling Casey and Roe entirely.”
They contend that “no half-measures” are available and that we must either reaffirm or overrule Roe and Casey. Brief for Respondents We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely, the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
The right to abortion does not fall within this category. Until the latter part of the 19th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority.
Roe was egregiously wrong from the start.
Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, Scalia, J concurring in judgment in part and dissenting in part. That is what the Constitution and the rule of law demand.
The law at issue in this case, Mississippi’s Gestational Age Act, see Miss. Code A contains this central provision: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.”
To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States “permitted nontherapeutic or elective abortion-on-demand after the twentieth week of gestation.”
a. The legislature then found that at 5 or 6 weeks’ gestational age an “unborn human being’s heart begins beating”; at 8 weeks the “unborn human being begins to move about in the womb”; at 9 weeks “all basic physiological functions are present”; at 10 weeks “vital organs begin to function,” and “ hair, fingernails, and toenails begin to form”; at 11 weeks “an unborn human being’s diaphragm is developing,” and he or she may “move about freely in the womb”; and at 12 weeks the “unborn human being” has “taken on ‘the human form’ in all relevant respects.”
It found that most abortions after 15 weeks employ “dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child,” and it concluded that the “intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”
Respondents are an abortion clinic, Jackson Women’s Health Organization, and one of its doctors. On the day the Gestational Age Act was enacted, respondents filed suit in Federal District Court against various Mississippi officials, alleging that the Act violated this Court’s precedents establishing a constitutional right to abortion. The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions” and that 15 weeks’ gestational age is “prior to viability.”
We granted certiorari, to resolve the question whether “all pre-viability prohibitions on elective abortions are unconstitutional,” Pet. for Cert. i. Petitioners’ primary defense of the Mississippi Gestational Age Act is that Roe and Casey were wrongly decided and that “the Act is constitutional because it satisfies rational-basis review.” Brief for Petitioners Respondents answer that allowing Mississippi to ban pre-viability abortions “would be no different than overruling Casey and Roe entirely.” Brief for Respondents.
They tell us that “no half measures” are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents.
We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion. Skipping over that question, the controlling opinion in Casey reaffirmed Roe’s “central holding” based solely on the doctrine of stare decisis, but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based.
We therefore turn to the question that the Casey plurality did not consider, and we address that question in three steps.
First we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as “ordered liberty.” Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.
Constitutional analysis must begin with “the language of the instrument,” Gibbons v. Ogden, Wheat. which offers a “fixed standard” for ascertaining what our founding document means, J. Story, Commentaries on the Constitution of the United States The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.
Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mention And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The Court’s discussion left open at least three ways in which some combination of these provisions could protect the abortion right. One possibility was that the right was “founded in the Ninth Amendment’s reservation of rights to the people.”
Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions, and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment just as many other Bill of Rights provisions had by then been incorporated.
And a third path was that the First, Fourth, and Fifth Amendments played no role and that the right was simply a component of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
Roe expressed the “feeling” that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance. The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
We discuss this theory in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents’ amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. See Brief for United States as Amicus Curiae Brief for United States Brief for Equal Protection Constitutional Law Scholars as Amici Curiae.
Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure tht only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex t] designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello. And as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women.
Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.
With this new theory addressed, we turn to Casey’s bold assertion that the abortion right is an aspect of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment.
The underlying theory on which this argument rests that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights.
The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government, Barron ex rel. Tiernan v. Mayor of Baltimore, Pet opinion for the Court by Marshall, C. J but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States.
The second category— which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in our history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.”
In conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue.
Justice Ginsburg’s opinion for the Court in Timbs is a recent example. In concluding that the Eighth Amendment’s protection against excessive fines is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition,” her opinion traced the right back to Magna Carta, Blackstone’s Commentaries, and of the state constitutions in effect at the ratification of the Fourteenth Amendment.
A similar inquiry was undertaken in McDonald, which held that the Fourteenth Amendment protects the right to keep and bear arms. The lead opinion surveyed the origins of the Second Amendment, the debates in Congress about the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified at least of the States protected the right to keep and bear arms, federal laws enacted during the same period, and other relevant historical evidence.
Only then did the opinion conclude that “the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” id at T, J concurring in part and concurring in judgment surveying history and reaching the same result under the Fourteenth Amendment’s Privileges or Immunities Clause.
Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights, and it would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution. Thus, in, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than years of “Anglo-American common law tradition,”and made clear that a fundamental right must be “objectively, deeply rooted in this Nation’s history and tradition.”
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing.” In a well-known essay, Isaiah Berlin reported that “ historians of ideas” had cataloged more than 200 different senses in which the term had been used.
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.
That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, “Substantive due process has at times been a treacherous field for this Court,” Moore v. East Clevelandplurality opinion, and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives. See Regents of Univ. of Mich. v. Ewing, As the Court cautioned “ we must exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”
On occasion, when the Court has ignored the “appropriate limits” imposed by “‘respect for the teachings of history,’” Moore, plurality opinion, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York, The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.
Until the latter part of the the 20th century, there was no support in American law for a constitutional right to obtain an abortion.
No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.
Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.
We begin with the common law, under which abortion was a crime at least after “quickening”, i.e the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.
The “eminent common-law authorities, Blackstone, Coke, Hale, and the like,” all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” De Legibus et Consuetudinibus Angliae reprinted in Selden Soc. H. Richardson & G. Sayles treatise.
Sir Edward Coke’s 13th-century treatise likewise asserted that abortion of a quick child was “murder” if the “childe be born alive” and a “great misprision” if the “childe dieth in her body.”
Institutes of the Laws of England “Misprision” referred to “some heynous offence under the degree of felony.”
Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a “great crime” and a “great misprision.” Pleas of the Crown Glazebrook. History of the Pleas of the Crown. And writing near the time of the adoption of our Constitution, William Blackstone explained that abortion of a “quick” child was “by the ancient law homicide or manslaughter” citing Bracton, and at least a very “heinous misdemeanor” citing Coke. Commentaries.
English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime. See generally J. Dellapenna, Dispelling the Myths of Abortion History and the Law In for example, Eleanor Beare was convicted of “destroying the Foetus in the Womb” of another woman and “thereby causing her to miscarry.”
For that crime and another “misdemeanor,” Beare was sentenced to two days in the pillory and three years’ imprisonment.
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. Removal of “common law’s harsh sanctions did not represent an acceptance of suicide”. Quite to the contrary, in the case mentioned above, the judge said of the charge of abortion with no mention of quickening that he had “never met with a case so barbarous and unnatural.” Similarly, an indictment from which did not distinguish between a prequickening and post-quickening abortion, described abortion as “pernicious” and “against the peace of our Lady the Queen, her crown and dignity.”
That the common law did not condone even prequickening abortions is confirmed by what one might call a proto-felony-murder rule. Hale and Blackstone explained a way in which a pre-quickening abortion could rise to the level of a homicide. Hale wrote that if a physician gave a woman “with child” a “potion” to cause an abortion, and the woman died, it was “murder” because the potion was given “unlawfully to destroy her child within her.”
As Blackstone explained, to be “murder” a killing had to be done with “malice aforethought either express or impli” Blackstone.
In the case of an abortionist, Blackstone wrote, “the law will imply malice” for the same reason that it would imply malice if a person who intended to kill one person accidentally killed a different person:
“If one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other.
The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.”
Notably, Blackstone, like Hale, did not state that this proto-felony-murder rule required that the woman be “with quick child” only that she be “with child.”
And it is revealing that Hale and Blackstone treated abortionists differently from other physicians or surgeons who caused the death of a patient “without any intent of doing the patient any bodily hurt.” Hale; Blackstone.
These other physicians—even if “unlicensed”—would not be “guilty of murder or manslaughter.” Hale.
But a physician performing an abortion would, precisely because his aim was an “unlawful” one.
In sum, although common-law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common-law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.
In this country, the historical record is similar. The “most important early American edition of Blackstone’s Commentaries,” District of Columbia v. Heller, reported Blackstone’s statement that abortion of a quick child was at least “a heinous misdemeanor,” St. George, Tucker, Blackstone’s Commentaries and that edition also included Blackstone’s discussion of the proto-felony-murder rule Manuals for justices of the peace printed in the Colonies in the 18th century typically restated the common-law rule on abortion, and some manuals repeated Hale’s and Blackstone’s statements that anyone who prescribed medication “unlawfully to destroy the child” would be guilty of murder if the woman died. See J. Parker, Conductor Generalis R. Burn, Justice of the Peace, and Parish Officer the English manual stating the same.
The few cases available from the early colonial period corroborate that abortion was a crime.
In Maryland in for example, an indictment charged that a man “Murtherously endeavoured to destroy or Murther the Child by him begotten in the Womb.” Proprietary v. Mitchell, Md. Archives W. Browne.
And by the 19th century, courts frequently explained that the common law made abortion of a quick child a crime.
The original ground for drawing a distinction between preand post-quickening abortions is not entirely clear, but some have attributed the rule to the difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, and thus, as one court put it “Until the period of quickening there is no evidence of life and whatever may be said of the feotus, the law has fixed upon this period of gestation as the time when the child is endowed with life” because “foetal movements are the first clearly marked and well defined evidences of life.”
“In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it”.
The Solicitor General offers a different explanation of the basis for the quickening rule, namely, that before quickening the common law did not regard a fetus “as having a ‘separate and independent existence.’” Brief for United States quoting Parker Mass But the case on which the Solicitor General relies for this proposition also suggested that the ’s quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that “to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being.”citing Blackstone.
At any rate, the original ground for the quickening rule is of little importance for present purposes because the rule was abandoned in the 19th century. During that period, treatise writers and commentators criticized the quickening distinction as “neither in accordance with the result of medical experience, nor with the principles of the common law.”, Researches in Medicine and Medical Jurisprudence describing the quickening distinction as “absurd” and “injurious”. In the British Parliament made abortion a crime at all stages of pregnancy and authorized the imposition of severe punishment. See Lord Ellenborough’s Act, c One scholar has suggested that Parliament’s decision “may partly have been attributable to the medical man’s concern that fetal life should be protected by the law at all stages of gestation.”
In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy.
By the year when the Fourteenth Amendment was ratified, threequarters of the States, out of had enacted statutes making abortion a crime even if it was performed before quickening. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.
The trend in the Territories that would become the last States was similar: All of them criminalized abortion at all stages of pregnancy between the Kingdom of Hawaii and New Mexico. Casey, Rehnquist, C. J concurring in judgment in part and dissenting in part.
By the end of the s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion “however and whenever performed, unless done to save or preserve the life of the mother.”
This overwhelming consensus endured until the day Roe was decided.
At that time, also by the Roe Court’s own count, a substantial majority— States still prohibited abortion at all stages except to save the life of the mother.
And though Roe discerned a “trend toward liberalization” in about “one third of the States,” those States still criminalized some abortions and regulated them more stringently than Roe would allow. In the “Court’s opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people.” Thornburgh v. American College of Obstetricians and Gynecologists, White, J dissenting.
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.
The Court in Roe could have said of abortion exactly what said of assisted suicide: “Attitudes toward abortion have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, that practice.”
Respondents and their amici have no persuasive answer to this historical evidence.
Neither respondents nor the Solicitor General disputes the fact that by 1868 the vast majority of States criminalized abortion at all stages of pregnancy.
See Brief for Petitioners Brief for American Historical Association et al. as Amici Curiae and conceding that out of States prohibited abortion before quickening; Tr. of Oral Arg. respondents’ counsel conceding the same. Instead, respondents are forced to argue that it “does not matter that some States prohibited abortion at the time Roe was decided or when the Fourteenth Amendment was adopt” Brief for Respondents.
But that argument flies in the face of the standard we have applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment.
Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century—no state constitutional provision, no statute, no judicial decision, no learned treatise. The earliest sources called to our attention are a few district court and state court decisions decided shortly before Roe and a small number of law review articles from the same time period.
A few of respondents’ amici muster historical arguments, but they are very weak. The Solicitor General repeats Roe’s claim that it is “‘doubtful’ ‘abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.’” Brief for United States quoting Roe. But as we have seen, great common-law authorities like Bracton, Coke, Hale, and Blackstone all wrote that a post-quickening abortion was a crime—and a serious one at that. Moreover, Hale and Blackstone and many other authorities following them asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt.
Instead of following these authorities, Roe relied largely on two articles by a pro-abortion advocate who claimed that Coke had intentionally misstated the common law because of his strong anti-abortion views.
These articles have been discredited, and it has come to light that even members of Jane Roe’s legal team did not regard them as serious scholarshi An internal memorandum characterized this author’s work as donning “the guise of impartial scholarship while advancing the proper ideological goals.” Continued reliance on such scholarship is unsupportable.
The Solicitor General next suggests that history supports an abortion right because the common law’s failure to criminalize abortion before quickening means that “at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages.” Brief for United States Brief for Respondents.
But the insistence on quickening was not universal, see Mills, Pa; State v. Slagle, N. C. and regardless, the fact that many States in the late 19th and early 20th century did not criminalize prequickening abortions does not mean that anyone thought the States lacked the authority to do so. When legislatures began to exercise that authority as the century wore on, no one, as far as we are aware, argued that the laws they enacted violated a fundamental right. That is not surprising since common-law authorities had repeatedly condemned abortion and described it as an “unlawful” act without regard to whether it occurred before or after quickening.
Another amicus brief relied upon by respondents see Brief for Respondents tries to dismiss the significance of the state criminal statutes that were in effect when the Fourteenth Amendment was adopted by suggesting that they were enacted for illegitimate reasons. According to this account, which is based almost entirely on statements made by one prominent proponent of the statutes, important motives for the laws were the fear that Catholic immigrants were having more babies than Protestants and that the availability of abortion was leading White Protestant women to “shirk their maternal duties.” Brief for American Historical Association et al. as Amici Curiae.
Resort to this argument is a testament to the lack of any real historical support for the right that Roe and Casey recognized.
This Court has long disfavored arguments based on alleged legislative motives.
The Court has recognized that inquiries into legislative motives “are a hazardous matter.” Even when an argument about legislative motive is backed by statements made by legislators who voted for a law, we have been reluctant to attribute those motives to the legislative body as a whole. “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it.”
Here, the argument about legislative motive is not even based on statements by legislators, but on statements made by a few supporters of the new 19th-century abortion laws, and it is quite a leap to attribute these motives to all the legislators whose votes were responsible for the enactment of those laws. Recall that at the time of the adoption of the Fourteenth Amendment, over three-quarters of the States had adopted statutes criminalizing abortion usually at all stages of pregnancy, and that from the early 20th century until the day Roe was handed down, every single State had such a law on its books. Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?
There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point.
One may disagree with this belief and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests, but even Roe and Casey did not question the good faith of abortion opponents. See, e.g Casey, “Men and women of good conscience can disagree about the profound moral and spiritual implications of terminating a pregnancy even in its earliest stage”. And we see no reason to discount the significance of the state laws in question based on these amici’s suggestions about legislative motive.
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” Casey elaborated: “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.”
The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.”
Ordered liberty sets limits and defines the boundary be
tween competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.”
But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recogniz Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” Miss. Code A b. Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.
Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, the right to marry while in prison, Turner v. Safley, the right to obtain contraceptives, Griswold v. Connecticut, Eisenstadt v. Baird, Carey v. Population Services Int’l, the right to reside with relatives, Moore v. East Cleveland, the right to make decisions about the education of one’s children, Pierce v. Society of Sisters, Meyer v. Nebraska, the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures.
Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas right to engage in private, consensual sexual acts, and Obergefell v. Hodges, right to marry a person of the same sex. See Brief for Respondents.
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. Compassion in Dying v. Washington, O’Scannlain, J dissenting from denial of rehearing en banc. None of these rights has any claim to being deeply rooted in history.
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, abortion is “inherently different”; Casey, abortion is “a unique act”. None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.
In drawing this critical distinction between the abortion right and other rights, it is not necessary to dispute Casey’s claim which we accept for the sake of argument that “the specific practices of States at the time of the adoption of the Fourteenth Amendment” do not “mark the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.
Defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the underlying moral question, but they do contend that changes in society require the recognition of a constitutional right to obtain an abortion. Without the availability of abortion, they maintain, people will be inhibited from exercising their freedom to choose the types of relationships they desire, and women will be unable to compete with men in the workplace and in other endeavors.
Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy that leave for pregnancy and childbirth are now guaranteed by law in many cases; that the costs of medical care associated with pregnancy are covered by insurance or government assistance that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home. They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.
Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives.
The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “‘deeply rooted’” one, “‘in this Nation’s history and tradition.’” Glucksberg, 521 U. S., at 721; see post, at 12–14 (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.).
The dissent does not identify any pre-Roe authority that supports such a right, no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. Compare post, at 12–14, n. 2, with supra, at 15–16, and n. 23.
Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy; that by the late 1950s at least 46 States prohibited abortion “however and whenever performed” except if necessary to save “the life of the mother,” Roe, 410 U. S., at 139; and that when Roe was decided in 1973 similar statutes were still in effect in 30 States.
The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be “‘deeply rooted in this Nation’s history and tradition’” before it can be recognized as a component of the “liberty” protected in the Due Process Clause.
But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.
The dissent attempts to obscure this failure by misrepresenting our application of Glucksberg.
The dissent suggests that we have focused only on “the legal status of abortion in the 20th century,” but our review of this Nation’s tradition extends well past that period. As explained, for more than a century after —including “another half-century” after women gained the constitutional right to vote it was firmly established that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regulatory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.
Because the dissent cannot argue that the abortion right is rooted in this Nation’s history and tradition, it contends that the “constitutional tradition” is “not captured whole at a single moment,” and that its “meaning gains content from the long sweep of our history and from successive judicial precedents.”
This vague formulation imposes no clear restraints on what Justice White called the “exercise of raw judicial power,” Roe, dissenting opinion, and while the dissent claims that its standard “does not mean anything goes,” any real restraints are hard to discern.
The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here.
First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed except to save the life of the mother in a majority of States for over years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.”
So without support in history or relevant precedent, Roe’s reasoning cannot be defended even under the dissent’s proposed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted Roe’s interpretation. Under the doctrine of stare decisis, those precedents are entitled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not “‘an inexorable command.’” Kimble v. Marvel Entertainment, LLC. There are occasions when past decisions should be overruled, and as we will explain, this is one of them.
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. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold contraception, Eisenstadt same, Lawrence sexual conduct with member of the same sex, and Obergefell same-sex marriage.
Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.”
The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.
That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life. The dissent repeatedly praises the “balance,” that the viability line strikes between a woman’s liberty interest and the State’s interest in prenatal life. But for reasons we discuss later see infra, at 50–54, 55–56, given in the opinion of THE CHIEF JUSTICE, post, at 2–5 opinion concurring in judgment, the viability line makes no sense. It was not adequately justified in Roe, and the dissent does not even try to defend it today. Nor does it identify any other point in a pregnancy after which a State is permitted to prohibit the destruction of a fetus.
Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has pass Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’”
We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision.
It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” Kimble, 576 U. S., at 455. It fosters “evenhanded” decisionmaking by requiring that like cases be decided in a like manner. Payne, 501 U. S., at 827.
It “contributes to the actual and perceived integrity of the judicial process.” Ibid.” And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” N. Gorsuch, “A Republic, If You Can Keep It.”
We have long recognized, however, that stare decisis is “not an inexorable command,” Pearson v. Callahan and it “is at its weakest when we interpret the Constitution,”
It has been said that it is sometimes more important that an issue “‘be settled than that it be settled right.’” Kimble quoting Burnet v. Coronado Oil & Gas CoBrandeis, J dissenting. But when it comes to the interpretation of the Constitution— the “great charter of our liberties,” which was meant “to endure through a long lapse of ages,” Martin v. Hunter’s Lessee Wheat opinion for the Court by Story, J.—we place a high value on having the matter “settled right.” In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. See Art. V; Kimble Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.
Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities.
In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, along with six other Supreme Court precedents that had applied the separate-but-equal rule.
In West Coast Hotel Co. v. Parrish, the Court overruled Adkins v. Children’s Hospital of D. C which had held that a law setting minimum wages for women violated the “liberty” protected by the Fifth Amendment’s Due Process Clause.
West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation.
Lochner v. New York, holding invalid a law setting maximum working hours Coppage v. Kansas, holding invalid a law banning contracts forbidding employees to join a union Jay Burns Baking Co. v. Bryan, holding invalid laws fixing the weight of loaves of bread.
Finally, in West Virginia Bd. of v. Barnette, after the lapse of only three years, the Court overruled Minersville School Dist. v. Gobitis, and held that public school students could not be compelled to salute the flag in violation of their sincere beliefs. Barnette stands out because nothing had changed during the intervening period other than the Court’s belated recognition that its earlier decision had been seriously wrong.
On many other occasions, this Court has overruled important constitutional decisions. We include a partial list in the footnote that follows. Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.
No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision.
In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.
The nature of the Court’s error. An erroneous interpretation of the Constitution is always important, but some are more damaging than others.
The infamous decision in Plessy v. Ferguson, was one such decision. It betrayed our commitment to “equality before the law.” Harlan, J dissenting. It was “egregiously wrong” on the day it was decided, see Ramos, opinion of K, J. and as the Solicitor General agreed at oral argument, it should have been overruled at the earliest opportunity.
Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely point.
Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” Roe, White, J dissenting, the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “
Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Casey opinion of Scalia, J Together, Roe and Casey represent an error that cannot be allowed to stand.
As the Court’s landmark decision in West Coast Hotel illustrates, the Court has previously overruled decisions that wrongly removed an issue from the people and the democratic process. As Justice White later explained, “decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people’s authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.” Thornburgh, dissenting opinion.
The quality of the reasoning. Under our precedents, the quality of the reasoning in a prior case has an important bearing on whether it should be reconsidered. See Janus; Ramos, opinion of K, J. In Part II.
We explained why Roe was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds.
Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule that States cannot protect fetal life prior to “viability” was never raised by any party and has never been plausibly explain Roe’s reasoning quickly drew scathing scholarly criticism, even from supporters of broad access to abortion.
The Casey plurality, while reaffirming Roe’s central holding, pointedly refrained from endorsing most of its reasoning.
It revised the textual basis for the abortion right, silently abandoned Roe’s erroneous historical narrative, and jettisoned the trimester framework. But it replaced that scheme with an arbitrary “undue burden” test and relied on an exceptional version of stare decisis that, as explained below, this Court had never before applied and has never invoked since.
The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. Dividing pregnancy into three trimesters, the Court imposed special rules for each.
During the first trimester, the Court announced, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”
After that point, a State’s interest in regulating abortion for the sake of a woman’s health became compelling, and accordingly, a State could “regulate the abortion procedure in ways that are reasonably related to maternal health.” Finally, in “the stage subsequent to viability,” which in 1973 roughly coincided with the beginning of the third trimester, the State’s interest in “the potentiality of human life” became compelling, and therefore a State could “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
This elaborate scheme was the Court’s own brainchild.
Neither party advocated the trimester framework; nor did either party or any amicus argue that “viability” should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transform See Brief for Appellant and Brief for Appellee in Roe v. Wade, O. T No. C. Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade
Not only did this scheme resemble the work of a legislature, but the Court made little effort to explain how these rules could be deduced from any of the sources on which constitutional decisions are usually bas We have already discussed Roe’s treatment of constitutional text, and the opinion failed to show that history, precedent, or any other cited source supported its scheme.
Roe featured a lengthy survey of history, but much of its discussion was irrelevant, and the Court made no effort to explain why it was includ For example, multiple paragraphs were devoted to an account of the views and practices of ancient civilizations where infanticide was widely accept discussing ancient Greek and Roman practices. When it came to the most important historical fact—how the States regulated abortion when the Fourteenth Amendment was adopted—the Court said almost nothing. It allowed that States had tightened their abortion laws “in the middle and late 19th century,” but it implied that these laws might have been enacted not to protect fetal life but to further “a Victorian social concern” about “illicit sexual conduct.”
Roe’s failure even to note the overwhelming consensus of state laws in effect is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court erroneously suggested—contrary to Bracton, Coke, Hale, Blackstone, and a wealth of other authority—that the common law had probably never really treated post-quickening abortion as a crime.
“It now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus”. This erroneous understanding appears to have played an important part in the Court’s thinking because the opinion cited “the lenity of the common law” as one of the four factors that informed its decision.
After surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee. This included a lengthy account of the “position of the American Medical Association” and “ the position of the American Public Health Association,” as well as the vote by the American Bar Association’s House of Delegates in February 1972 on proposed abortion legislation.
Also noted were a British judicial decision handed down in and a new British abortion law enacted in The Court did not explain why these sources shed light on the meaning of the Constitution, and not one of them adopted or advocated anything like the scheme that Roe imposed on the country.
Finally, after all this, the Court turned to precedent. Citing a broad array of cases, the Court found support for a constitutional “right of personal privacy,” but it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.
Only the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield. See Pierce, right to send children to religious school; Meyer, right to have children receive German language instruction.
What remained was a handful of cases having something to do with marriage, Loving, right to marry a person of a different race, or procreation, Skinner right not to be sterilized; Griswold, right of married persons to obtain contraceptives; Eisenstadt, same, for unmarried persons. But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed “potential life.”
When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “consistent with” the following: “the relative weights of the respective interests involved,” “the lessons and examples of medical and legal history,” “the lenity of the common law,” and “the demands of the profound problems of the present day.” Roe Put aside the second and third factors, which were based on the Court’s flawed account of history, and what remains are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.
What Roe did not provide was any cogent justification for the lines it drew. Why, for example, does a State have no authority to regulate first trimester abortions for the purpose of protecting a woman’s health? The Court’s only explanation was that mortality rates for abortion at that stage were lower than the mortality rates for childbirth. But the Court did not explain why mortality rates were the only factor that a State could legitimately consider.
Many health and safety regulations aim to avoid adverse health consequences short of death. And the Court did not explain why it departed from the normal rule that courts defer to the judgments of legislatures “in areas fraught with medical and scientific uncertainties.”
An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre and postviability abortions. Here is the Court’s entire explanation:
“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb.”
As Professor Laurence Tribe has written, “clearly, this mistakes ‘a definition for a syllogism.’”
Tribe quoting Ely The definition of a “viable” fetus is one that is capable of surviving outside the womb, but why is this the point at which the State’s interest becomes compelling? If, as Roe held, a State’s interest in protecting prenatal life is compelling “after viability,” why isn’t that interest “equally compelling before viability”?
Roe did not say, and no explanation is apparent.
This arbitrary line has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. Some have argued that a fetus should not be entitled to legal protection until it acquires the characteristics that they regard as defining what it means to be a “person.” Among the characteristics that have been offered as essential attributes of “personhood” are sentience, selfawareness, the ability to reason, or some combination thereto.
By this logic, it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as “persons.” But even if one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins.
The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years. In the 19th century, a fetus may not have been viable until the 32nd or 33rd week of pregnancy or even later. When Roe was decided, viability was gauged at roughly 28 weeks.
Today, respondents draw the line at 23 or 24 weeks. Brief for Respondents So, according to Roe’s logic, States now have a compelling interest in protecting a fetus with a gestational age of, say, 26 weeks, but in 1973 States did not have an interest in protecting an identical fetus.
How can that be?
Viability also depends on the “quality of the available medical facilities.”
Thus, a 24 week-old fetus may be viable if a woman gives birth in a city with hospitals that provide advanced care for very premature babies, but if the woman travels to a remote area far from any such hospital, the fetus may no longer be viable. On what ground could the constitutional status of a fetus depend on the pregnant woman’s location? And if viability is meant to mark a line having universal moral significance, can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country?
In addition, as the Court once explained, viability is not really a hard-and-fast line.
A physician determining a particular fetus’s odds of surviving outside the womb must consider “a number of variables,” including “gestational age,” “fetal weight,” a woman’s “general health and nutrition,” the “quality of the available medical facilities,” and other factors. It is thus “only with difficulty” that a physician can estimate the “probability” of a particular fetus’s survival. And even if each fetus’s probability of survival could be ascertained with certainty, settling on a “probability of survival” that should count as “viability” is another matter. Is a fetus viable with a percent chance of survival?
Can such a judgment be made by a State? And can a State specify a gestational age limit that applies in all cases? Or must these difficult questions be left entirely to the individual “attending physician on the particular facts of the case before him”?
The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line. The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the States less freedom to regulate abortion than the majority of western democracies enjoy.
All in all, Roe’s reasoning was exceedingly weak, and academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism.
John Hart Ely famously wrote that Roe was “not constitutional law and gave almost no sense of an obligation to try to be.” Ely Archibald Cox, who served as Solicitor General under President Kennedy, commented that Roe “reads like a set of hospital rules and regulations” that “ neither historian, layman, nor lawyer will be persuaded are part of the Constitution.” The Role of the Supreme Court in American Government Laurence Tribe wrote that “even if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, ‘interest-balancing’ of the form the Court pursues fails to justify any of the lines actually drawn.” Tribe termed Roe a “totally unreasoned judicial opinion.”
Despite Roe’s weaknesses, its reach was steadily extended in the years that follow The Court struck down laws requiring that second-trimester abortions be performed only in hospitals, Akron v. Akron Center for Reproductive Health, Inc that minors obtain parental consent, Planned Parenthood of Central Mo. v. Danforth, that women give written consent after being informed of the status of the developing prenatal life and the risks of abortion, Akron, that women wait hours for an abortion, that a physician determine viability in a particular manner, Colautti that a physician performing a post-viability abortion use the technique most likely to preserve the life of the fetus, and that fetal remains be treated in a humane and sanitary manner, Akron.
Justice White complained that the Court was engaging in “unrestrained imposition of its own extraconstitutional value preferences.” Thornburgh, dissenting opinion. And the United States as amicus curiae asked the Court to overrule Roe five times in the decade before Casey, joint opinion, and then asked the Court to overrule it once more in Casey itself.
When Casey revisited Roe almost years later, very little of Roe’s reasoning was defended or preserv The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause.
The Court did not reaffirm Roe’s erroneous account of abortion history. In fact, none of the Justices in the majority said anything about the history of the abortion right. And as for precedent, the Court relied on essentially the same body of cases that Roe had cit Thus, with respect to the standard grounds for constitutional decisionmaking—text, history, and precedent—Casey did not attempt to bolster Roe’s reasoning.
The Court also made no real effort to remedy one of the greatest weaknesses in Roe’s analysis: its much-criticized discussion of viability. The Court retained what it called Roe’s “central holding”—that a State may not regulate previability abortions for the purpose of protecting fetal life— but it provided no principled defense of the viability line. Instead, it merely rephrased what Roe had said, stating that viability marked the point at which “the independent existence of a second life can in reason and fairness be the object of state protection that now overrides the rights of the woman.” Why “reason and fairness” demanded that the line be drawn at viability the Court did not explain.
And the Justices who authored the controlling opinion conspicuously failed to say that they agreed with the viability rule; instead, they candidly acknowledged “the reservations some of us may have in reaffirming that holding of Roe.”
The controlling opinion criticized and rejected Roe’s trimester scheme, and substituted a new “undue burden” test, but the basis for this test was obscure. And as we will explain, the test is full of ambiguities and is difficult to apply.
Casey, in short, either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new and problematic test with no firm grounding in constitutional text, history, or precedent.
As discussed below, Casey also deployed a novel version of the doctrine of stare decisis This new doctrine did not account for the profound wrongness of the decision in Roe, and placed great weight on an intangible form of reliance with little if any basis in prior case law. Stare decisis does not command the preservation of such a decision.
Our precedents counsel that another important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner.
Problems begin with the very concept of an “undue burden.” As Justice Scalia noted in his Casey partial dissent, determining whether a burden is “due” or “undue” is “inherently standardless.” June Medical Services L. L. C. v. Russo G, J dissenting “Whether a burden is deemed undue depends heavily on which factors the judge considers and how much weight he accords each of them”.
The Casey plurality tried to put meaning into the “undue burden” test by setting out three subsidiary rules, but these rules created their own problems. The first rule is that “a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” But whether a particular obstacle qualifies as “substantial” is often open to reasonable debate. In the sense relevant here, “substantial” means “of ample or considerable amount, quantity, or size.”
Random House Webster’s Unabridged Dictionary (2d ed. 2001) Huge burdens are plainly “substantial,” and trivial ones are not, but in between these extremes, there is a wide gray area.
This ambiguity is a problem, and the second rule, which applies at all stages of a pregnancy, muddies things further. It states that measures designed “to ensure that the woman’s choice is informed” are constitutional so long as they do not impose “an undue burden on the right.” Casey, To the extent that this rule applies to previability abortions, it overlaps with the first rule and appears to impose a different standard. Consider a law that imposes an insubstantial obstacle but serves little purpose. As applied to a pre-viability abortion, would such a regulation be constitutional on the ground that it does not impose a “substantial obstacle”? Or would it be unconstitutional on the ground that it creates an “undue burden” because the burden it imposes, though slight, outweighs its negligible benefits? Casey does not say, and this ambiguity would lead to confusion down the line. Compare June Medical plurality opinion with R, C. J concurring.
The third rule complicates the picture even more. Under that rule, “ unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”
This rule contains no fewer than three vague terms. It includes the two already discussed—“undue burden” and “substantial obstacle”—even though they are inconsistent. And it adds a third ambiguous term when it refers to “unnecessary health regulations.” The term “necessary” has a range of meanings—from “essential” to merely “useful.” See Black’s Law Dictionary the American Heritage Dictionary of the English Language.
Casey did not explain the sense in which the term is used in this rule.
In addition to these problems, one more applies to all three rules. They all call on courts to examine a law’s effect on women, but a regulation may have a very different impact on different women for a variety of reasons, including 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. In order to determine whether a regulation presents a substantial obstacle to women, a court needs to know which set of women it should have in mind and how many of the women in this set must find that an obstacle is “substantial.”
Casey provided no clear answer to these questions.
It said that a regulation is unconstitutional if it imposes a substantial obstacle “in a large fraction of cases in which it is relevant,” but there is obviously no clear line between a fraction that is “large” and one that is not.
Nor is it clear what the Court meant by “cases in which” a regulation is “relevant.” These ambiguities have caused confusion and disagreement. Compare Whole Woman’s Health v. Hellerstedt, with A, J dissenting.
The difficulty of applying Casey’s new rules surfaced in that very case. The controlling opinion found that Pennsylvania’s 24-hour waiting period requirement and its informed-consent provision did not impose “undue burdens,” Casey, 505 U. S., at 881–887, but Justice Stevens, applying the same test, reached the opposite result, at 920–922 (opinion concurring in part and dissenting in part).
That did not bode well, and then-Chief Justice Rehnquist aptly observed that “the undue burden standard presents nothing more workable than the trimester framework.” Id., at 964–966 (dissenting opinion).
The ambiguity of the “undue burden” test also produced disagreement in later cases. In Whole Woman’s Health, the Court adopted the cost-benefit interpretation of the test, stating that “ the rule announced in Casey requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
But five years later, a majority of the Justices rejected that interpretation. See June Medical Four Justices reaffirmed Whole Woman’s Health’s instruction to “weigh” a law’s “benefits” against “the burdens it imposes on abortion access.”
But The Chief Justice, who cast the deciding vote, argued that “ nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.” opinion concurring in judgment And the four Justices in dissent rejected the plurality’s interpretation of Casey.
This Court’s experience applying Casey has confirmed Chief Justice Rehnquist’s prescient diagnosis that the undue-burden standard was “not built to last.” Casey, opinion concurring in judgment in part and dissenting in part.
The experience of the Courts of Appeals provides further evidence that Casey’s “line between” permissible and unconstitutional restrictions “has proved to be impossible to draw with precision.” Janus, Casey has generated a long list of Circuit conflicts. Most recently, the Courts of Appeals have disagreed about whether the balancing test from Whole Woman’s Health correctly states the undue-burden framework. They have disagreed on the legality of parental notification rules.
They have disagreed about bans on certain dilation and evacuation procedures. They have disagreed about when an increase in the time needed to reach a clinic constitutes an undue burden. And they have disagreed on whether a State may regulate abortions performed because of the fetus’s race, sex, or disability.
The Courts of Appeals have experienced particular difficulty in applying the large-fraction-of-relevant-cases test. They have criticized the assignment while reaching unpredictable results. And they have candidly outlined Casey’s many other problems.
Casey’s “undue burden” test has proved to be unworkable.
“Plucked from nowhere,” opinion of Rehnquist, C. J it “seems calculated to perpetuate give-ita-try litigation” before judges assigned an unwieldy and inappropriate task. Lehnert v. Ferris Faculty Assn Scalia, J concurring in judgment in part and dissenting in part. Continued adherence to that standard would undermine, not advance, the “evenhanded, predictable, and consistent development of legal principles.”
Effect on other areas of law. Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. See Ramos, opinion of Janus.
Members of this Court have repeatedly lamented that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Thornburgh, O’Connor, J dissenting Madsen v. Women’s Health Center, Inc. Scalia, J concurring in judgment in part and dissenting in part Whole Woman’s Health T, J dissenting; A, J dissenting June Medical.
The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.
When vindicating a doctrinal innovation requires courts to engineer exceptions to longstanding background rules, the doctrine “has failed to deliver the ‘principled and intelligible’ development of the law that stare decisis purports to secure.” T, J dissenting quoting Vasquez v. Hillery,
E Reliance interests.
We last consider whether overruling Roe and Casey will upend substantial reliance interests.
Traditional reliance interests arise “where advance planning of great precision is most obviously a necessity.” Casey, joint opinion In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here.
Unable to find reliance in the conventional sense, the controlling opinion in Casey perceived a more intangible form of reliance. It wrote that “people had organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail” and that “ 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.”
But this Court is ill-equipped to assess “generalized assertions about the national psyche.” opinion of Rehnquist, C. J Casey’s notion of reliance thus finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in “cases involving property and contract rights.”
When a concrete reliance interest is asserted, courts are equipped to evaluate the claim, but assessing the novel and intangible form of reliance endorsed by the Casey plurality is another matter. That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women. The contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women. Compare Brief for Petitioners; Brief for Women Scholars et al. as Amici Curiae with Brief for Respondents Brief for National Women’s Law Center et al. as Amici Curiae.
The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes, and the Casey plurality’s speculations and weighing of the relative importance of the fetus and mother represent a departure from the “original constitutional proposition” that “courts do not substitute their social and economic beliefs for the judgment of legislative bodies.”
Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.
It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November women, who make up around 55.5 percent of the population of Mississippi, constituted percent of the voters who cast ballots.
Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States citing Obergefell, Lawrence,Griswold.
That is not correct for reasons we have already discuss As even the Casey plurality recognized, “abortion is a unique act” because it terminates “life or potential life.” Roe, abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”. And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
Having shown that traditional stare decisis factors do not weigh in favor of retaining Roe or Casey, we must address one final argument that featured prominently in the Casey plurality opinion.
The argument was cast in different terms, but stated simply, it was essentially as follows.
The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not “social and political pressures.” There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial “watershed” decision, such as Roe. A decision overruling Roe would be perceived as having been made “under fire” and as a “surrender to political pressure,” and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe,
This analysis starts out on the right foot but ultimately veers off course. The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. Texas v. Johnson, Brown,
That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision. As Chief Justice Rehnquist explained, “The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task.” Casey, opinion concurring in judgment in part and dissenting in part. In suggesting otherwise, the Casey plurality went beyond this Court’s role in our constitutional system.
The Casey plurality “called the contending sides of a national controversy to end their national division,” and claimed the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying that the matter was closed.
That unprecedented claim exceeded the power vested in us by the Constitution. As Alexander Hamilton famously put it, the Constitution gives the judiciary “neither Force nor Will.” The Federalist No J. Cooke Our sole authority is to exercise “judgment”—which is to say, the authority to judge what the law means and how it should apply to the case at hand. The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law. That is not how stare decisis operates.
The Casey plurality also misjudged the practical limits of this Court’s influence. Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe “inflamed” a national issue that has remained bitterly divisive for the past half century. Casey, opinion of Scalia, J. R. Ginsburg, Speaking in a Judicial Voice, N. Y. U. L Roe may have “halted a political process,” “prolonged divisiveness,” and “deferred stable settlement of the issue”. And for the past years, Casey has done the same.
Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise “raw judicial power.” Roe, White, J dissenting.
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
The dissent argues that we have “abandoned” stare decisis, but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition. The dissent’s foundational contention is that the Court should never or perhaps almost never overrule an egregiously wrong constitutional precedent unless the Court can “point to major legal or factual changes undermining the decision’s original basis.” To support this contention, the dissent claims that Brown v. Board of Education and other landmark cases overruling prior precedents “responded to changed law and to changed facts and attitudes that had taken hold throughout society.” The unmistakable implication of this argument is that only the passage of time and new developments justified those decisions.
Recognition that the cases they overruled were egregiously wrong on the day they were handed down was not enough.
The Court has never adopted this strange new version of stare decisis—and with good reason. Does the dissent really maintain that overruling Plessy was not justified until the country had experienced more than a half-century of state sanctioned segregation and generations of Black school children had suffered all its effects?
Here is another example. On the dissent’s view, it must have been wrong for West Virginia Bd. of v. Barnette, to overrule Minersville School Dist. v. Gobitis, a bare three years after it was handed down.
In both cases, children who were Jehovah’s Witnesses refused on religious grounds to salute the flag or recite the pledge of allegiance. The Barnette Court did not claim that its reexamination of the issue was prompted by any intervening legal or factual developments, so if the Court had followed the dissent’s new version of stare decisis, it would have been compelled to adhere to Gobitis and countenance continued First Amendment violations for some unspecified period.
Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket. And indeed, the dissent eventually admits that a decision could “be overruled just because it is terribly wrong,” though the dissent does not explain when that would be so.
Even if the dissent were correct in arguing that an egregiously wrong decision should almost never be overruled unless its mistake is later highlighted by “major legal or factual changes,” reexamination of Roe and Casey would be amply justifi We have already mentioned a number of post-Casey developments, but the most profound change may be the failure of the Casey plurality’s call for “the contending sides” in the controversy about abortion “to end their national division.”
That has not happened, and there is no reason to think that another decision sticking with Roe would achieve what Casey could not.
The dissent, however, is undeterred.
It contends that the “very controversy surrounding Roe and Casey” is an important stare decisis consideration that requires upholding those precedents.
The dissent characterizes Casey as a “precedent about precedent” that is permanently shielded from further evaluation under traditional stare decisis principles. But as we have explained, Casey broke new ground when it treated the national controversy provoked by Roe as a ground for refusing to reconsider that decision, and no subsequent case has relied on that factor. Our decision today simply applies longstanding stare decisis factors instead of applying a version of the doctrine that seems to apply only in abortion cases.
Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell.
But we have stated unequivocally that “ nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter as we have stressed uniquely involves what Roe and Casey termed “potential life.”
Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.
We now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled.
That opinion which for convenience we will call simply “the concurrence” recommends a “more measured course,” which it defends based on what it claims is “a straightforward stare decisis analysis,” opinion of R, C. J
The concurrence would “leave for another day whether to reject any right to an abortion at all,” and would hold only that if the Constitution protects any such right, the right ends once women have had “a reasonable opportunity” to obtain an abortion, The concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Mississippi’s law, is enough—at least “absent rare circumstances.”
There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party. As we have recounted, both parties and the Solicitor General have urged us either to reaffirm or overrule Roe and Casey.And when the specific approach advanced by the concurrence was broached at oral argument, both respondents and the Solicitor General emphatically rejected it. Respondents’ counsel termed it “completely unworkable” and “less principled and less workable than viability.”
The Solicitor General argued that abandoning the viability line would leave courts and others with “no continued guidance.”
What is more, the concurrence has not identified any of the more than amicus briefs filed in this case that advocated its approach.
The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “ no party or amicus asked the Court to adopt.”
The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach. The concurrence would “discard” “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.”
But this rule was a critical component of the holdings in Roe and Casey, and stare decisis is “a doctrine of preservation, not transformation,” Citizens United v. Federal Election Comm’n R, C. J concurring. Therefore, a new rule that discards the viability rule cannot be defended on stare decisis grounds.
The concurrence concedes that its approach would “not be available” if “the rationale of Roe and Casey were inextricably entangled with and dependent upon the viability standard.” But the concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent. That is simply incorrect.
Roe’s trimester rule was expressly tied to viability, and viability played a critical role in later abortion decisions. For example, in Planned Parenthood of Central Mo. v. Danforth, the Court reiterated Roe’s rule that a “State may regulate an abortion to protect the life of the fetus and even may proscribe abortion” at “the stage subsequent to viability.”
The Court then rejected a challenge to Missouri’s definition of viability, holding that the State’s definition was consistent with Roe’s.
If viability was not an essential part of the rule adopted in Roe, the Court would have had no need to make that comparison.
The holding in Colautti v. Franklin, is even more instructive. In that case, the Court noted that prior cases had “stressed viability” and reiterated that “viability is the critical point” under Roe. It then struck down Pennsylvania’s definition of viability, and it is hard to see how the Court could have done that if Roe’s discussion of viability was not part of its holding.
When the Court reconsidered Roe in Casey, it left no doubt about the importance of the viability rule. It described the rule as Roe’s “central holding,” and repeatedly stated that the right it reaffirmed was “the right of the woman to choose to have an abortion before viability.”
“The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce”
A “woman has a right to choose to terminate or continue her pregnancy before viability”.
“A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”.
Our subsequent cases have continued to recognize the centrality of the viability rule. See Whole Women’s Health, “A provision of law is constitutionally invalid, if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability’” emphasis deleted and added; “ We now use ‘viability’ as the relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health”.
Not only is the new rule proposed by the concurrence inconsistent with Casey’s unambiguous “language,” it is also contrary to the judgment in that case and later abortion cases. In Casey, the Court held that Pennsylvania’s spousal-notification provision was facially unconstitutional, not just that it was unconstitutional as applied to abortions sought prior to the time when a woman has had a reasonable opportunity to choose.
The same is true of Whole Women’s Health, which held that certain rules that required physicians performing abortions to have admitting privileges at a nearby hospital were facially unconstitutional because they placed “a substantial obstacle in the path of women seeking a previability abortion.”
For all these reasons, stare decisis cannot justify the new “reasonable opportunity” rule propounded by the concurrence. If that rule is to become the law of the land, it must stand on its own, but the concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is “‘deeply rooted in this Nation’s history and tradition’” and “‘implicit in the concept of ordered liberty.’”
Nor does it propound any other theory that could show that the Constitution supports its new rule. And if the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all “reasonable” women will have decided whether to seek an abortion. While the concurrence is moved by a desire for judicial minimalism, “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Citizens United, R, C. J concurring.
For the reasons that we have explained, the concurrence’s approach is not.
The concurrence would “leave for another day whether to reject any right to an abortion at all,” but “another day” would not be long in coming. Some States have set deadlines for obtaining an abortion that are shorter than Mississippi’s. See, e.g Memphis Center for Reproductive Health v. Slatery at considering law with bans “at cascading intervals of two to three weeks” beginning at six weeks.
If we held only that Mississippi’s 15 week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all. The “measured course” charted by the concurrence would be fraught with turmoil until the Court answered the question that the concurrence seeks to defer.
Even if the Court ultimately adopted the new rule suggested by the concurrence, we would be faced with the difficult problem of spelling out what it means. For example, if the period required to give women a “reasonable” opportunity to obtain an abortion were pegged, as the concurrence seems to suggest, at the point when a certain percentage of women make that choice, see we would have to identify the relevant percentage. It would also be necessary to explain what the concurrence means when it refers to “rare circumstances” that might justify an exception. And if this new right aims to give women a reasonable opportunity to get an abortion, it would be necessary to decide whether factors other than promptness in deciding might have a bearing on whether such an opportunity was available.
In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolong It is far better, for this Court, and the country, to face up to the real issue without further delay.
We must now decide what standard will govern if state
abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard.
Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.
It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.” Ferguson Dandridge v. Williams; United States v. Carolene Products Co.
That respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance. See, e.g Board of Trustees of Univ. of Ala. v. Garrett, “treatment of the disabled”; “assisted suicide”; San Antonio Independent School Dist. v. Rodriguez, “financing public education”.
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.”
It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. FCC v. Beach Communications, Inc. New Orleans v. Dukes, per curiam; Williamson v. Lee Optical of Okla Inc.
These legitimate interests include respect for and preservation of prenatal life at all stages of development, Gonzales, the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability Roe identifying similar interests.
These legitimate interests justify Mississippi’s Gestational Age Act. Except “in a medical emergency or in the case of a severe fetal abnormality,” the statute prohibits abortion “if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.” Miss. Code A b. The Mississippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.”
The legislature also found that abortions performed after15 weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for nontherapeutic or elective reasons to be a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” bi Gonzales, describing such procedures. These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail.
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
End of SCOTUS opinion. Supporting opinions and dissenting opinions, footnotes and citations is at: SCOTUS
Analysis from SCOTUS BLOG seems fair, not sensationalized and it’s brief
The Supreme Court on Friday eliminated the constitutional right to obtain an abortion, casting aside 49 years of precedent that began with Roe v. Wade.
The decision by Justice Samuel Alito will set off a seismic shift in reproductive rights across the United States. It will allow states to ban abortion, and experts expect about half the states to do so.
In one of the most anticipated rulings in decades, the court overturned Roe, which first declared a constitutional right to abortion in 1973, and Planned Parenthood v. Casey, which re-affirmed that right in 1992. The decision followed the leak in early May of a draft opinion showing that a majority of the justices were privately poised to take that step. On Friday, they made it official.
The vote to overturn Roe was 5-4. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Alito’s opinion. Chief Justice John Roberts did not join the opinion. He agreed with the majority that the Mississippi abortion restriction at issue in the case should be upheld, but in a separate opinion, he argued that the court should not have overturned Roe.
The court’s three liberals — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — filed a joint dissent. They called the majority opinion a violation of women’s autonomy and said it would harm the court’s legitimacy and jeopardize other constitutional rights.
The decision came in Dobbs v. Jackson Women’s Health Organization, a challenge to a 2018 Mississippi law that bans virtually all abortions after the 15th week of pregnancy. The law carves out exceptions for medical emergencies and cases involving a “severe fetal abnormality” but does not make exceptions for cases involving rape or incest. It never went into effect, however, because the lower courts – including the conservative U.S. Court of Appeals for the 5th Circuit – found the law clearly inconsistent with Roe and Casey and blocked the state from enforcing it. Friday’s decision reversed the lower courts and upheld the law.
Its impact will spread far beyond Mississippi’s 15-week abortion law. By renouncing Roe and Casey (and decades of other abortion cases that relied on those decisions), the decision permits states to implement far more restrictive abortion laws. Mississippi itself has indicated that it will enforce a different state law, passed in 2007, that prohibits virtually all abortions, except to save the life of the mother or in cases involving rape. A dozen other states have passed similar legislation, known as “trigger laws” because they were drafted to go into effect if Roe and Casey were overturned. An analysis by the Guttmacher Institute predicts that 26 states are likely to ban all or nearly all abortions.
Alito’s majority opinion
Alito began his 79-page opinion by observing that abortion “presents a profound moral issue on which Americans hold sharply conflicting views.” But the Constitution does not refer to abortion at all, Alito stressed. And although the Supreme Court has recognized some constitutional rights as protected by the due process clause, even if they are not expressly mentioned in the Constitution, the right to an abortion is not one of them, Alito explained. Among other things, he noted, the court has required such rights to be “deeply rooted in our Nation’s history.” But until the second half of the 20th century, Alito observed, there was no support in U.S. law for the right to an abortion – indeed, he pointed out, most states regarded abortion as a crime.
Although the Supreme Court’s decisions in Roe and Casey established a right to an abortion, Alito continued, those decisions should be overruled despite the principle of stare decisis – the idea that courts should not overturn their prior precedent unless there is a compelling reason to do so. Stare decisis, Alito stressed, “is not a straitjacket” when a ruling is grievously incorrect. Noting that some of the Supreme Court’s other landmark decisions, such as Brown v. Board of Education, rejecting the “separate but equal” doctrine, had overruled precedent, Alito emphasized that Roe was “egregiously wrong and deeply damaging” and – along with Casey– should not be allowed to stand. Instead, Alito concluded, the issue of abortion should “return … to the people’s representatives.”
The majority contended that Friday’s ruling would not undermine other decisions by the court involving fundamental rights that the Constitution does not expressly mention, such as the right to contraception (Griswold v. Connecticut) and the rights to same-sex intimacy (Lawrence v. Texas) and marriage (Obergefell v. Hodges). Unlike those rights, Alito wrote, abortion terminates what Roe and Casey refer to as “potential life” and what the Mississippi law refers to as an “unborn human being.” “Nothing in this opinion,” Alito added later, “should be understood to cast doubt on precedents that do not concern abortion.”
Because abortion does not involve a fundamental right, Alito wrote, the Mississippi law is subject to the most lenient standard of review, known as rational-basis scrutiny. Laws can survive rational-basis review if there is a “rational basis on which the legislature could have thought that it would serve legitimate state interests.” Because the legislature enacted the Mississippi law to – among other things – “assert the State’s interest in ‘protecting the life of the unborn’” and because it regarded the procedure commonly used for abortions after the 15th week of pregnancy as “barbaric” and “demeaning to the medical profession,” Alito concluded, the abortion providers’ challenge to the law “must fail.”
A solo plea from Roberts
Calling the majority opinion “a serious jolt to the legal system,” Roberts agreed with the decision to uphold the Mississippi law, but he would have done so without formally overruling Roe and Casey. Echoing a position that he took at the oral argument (which then, as now, did not seem to attract any other supporters), Roberts would have allowed states to continue to regulate abortion without regard to whether the fetus has become viable – that is, the point at which it can survive outside the womb. In Casey, the court ruled that states may not ban abortions before the point of viability, which is typically considered to be at 22 to 24 weeks of pregnancy.
Roberts explained that the court’s prior cases had “adopted two distinct rules of constitutional law”: the right to end a pregnancy, and the states’ power to override that right at the point that the fetus becomes viable. Because the viability line “never made any sense,” Roberts wrote, he would “abandon that timing rule.” The right to terminate a pregnancy, Roberts reasoned, should “extend far enough to ensure a reasonable opportunity to choose, but need not extend any further.” The court could and should, Roberts wrote, “leave for another day whether to reject any right to an abortion at all.”
Concurrences from Kavanaugh and Thomas
Kavanaugh joined the Alito opinion but wrote a separate concurring opinion in which he emphasized that the Constitution is “neutral” on abortion and, therefore “this Court must also be scrupulously neutral” on the question. “The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or pro-choice abortion policy for all 330 million people in the United States.”
Kavanaugh also stressed the limits of Friday’s ruling. The court’s opinion, he wrote, “does not outlaw abortion throughout the United States” but instead “properly leaves the question of abortion for the people and their representatives.” It also, he said, “does not threaten or cast doubt” on decisions like Griswold or Obergefell. Moreover, he suggested, other questions that may flow from the court’s ruling – such as whether states can ban their residents from traveling to another state to obtain an abortion or whether a state can punish a resident who obtained an abortion before Friday’s ruling – “are not especially difficult as a constitutional matter.” The answer, Kavanaugh said, is “no.”
But a concurring opinion by Thomas indicated that, at least for him, decisions like Griswold, Lawrence, and Obergefell are very much in doubt. Thomas reiterated his view that the Constitution’s due process clause only protects process – the right to have the government follow proper procedures before taking away someone’s life, liberty, or property. The due process clause, Thomas wrote, does not protect any substantive rights. Because the Alito opinion concluded that there is no right to an abortion even under the Supreme Court’s substantive due process cases, Thomas explained, he joined the court’s opinion. But in a future case, he urged, the court should “reject substantive due process entirely” and reconsider cases like Griswold, Lawrence, and Obergefell.
The liberal justices dissent
In a rare joint dissent, Breyer, Sotomayor, and Kagan pushed back against the majority’s characterization of the decision as merely leaving the issue of abortion to the states. “We believe,” they wrote, “in a Constitution that puts some issues off limits to majority rule.”
The dissenters also rejected Kavanaugh’s depiction of Friday’s ruling as “neutral” on abortion. The court, they said, “does not act ‘neutrally’ when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers.” Kavanaugh’s position, they insisted, was instead a “brook-no-compromise refusal to recognize a woman’s right to choose.”
The dissenters warned that, despite assurances to the contrary, “no one should be confident that this majority is done with its work.” The right to an abortion at the core of Roe and Casey, the dissenters explained, is “part of the same constitutional fabric” as the rights to contraception and same-sex intimacy and marriage. “Either the mass of the majority’s opinion is hypocrisy,” the dissenters suggested, “or additional constitutional rights are under threat. It is one or the other.”
The three justices closed their 60-page dissent by arguing that Friday’s ruling had undermined the legitimacy of the court. The plurality in Casey – Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter – believed that the public “should never conclude that its constitutional protections hung by a thread — that a new majority … could ‘by dint of numbers’ alone expunge their rights.” But by overruling Roe and Casey, the dissenters contended, the court had “betray[ed] its guiding principles.” Notably, the dissenters finished by noting only that they dissented, omitting the word “respectfully” that commonly accompanies the dissent.