DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
SUPREME COURT OF THE UNITED STATES
DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, et al. v. JACKSON WOMEN’S HEALTH ORGANIZATION et al.
certiorari to the united states court of appeals for the fifth circuit
No. 19–1392. Argued December 1, 2021—Decided June 24, 2022
Alito, J., delivered the opinion of the Court, in which Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Thomas, J., and Kavanaugh, J., filed concurring opinions. Roberts, C. J., filed an opinion concurring in the judgment. Breyer, Sotomayor, and Kagan, JJ., filed a dissenting opinion.
Justice Alito delivered the opinion of the Court.
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. . . .
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 pre-viability 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, 30 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,
505 U. S. 833 (1992), the Court revisited Roe,
but the Members of the Court split three ways. Two
Justices expressed no desire to change Roe in
Four others wanted to overrule the decision in its
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. . . .
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.
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 20th 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.”That
is what the Constitution and the rule of law demand. . . .
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,” which offers a “fixed standard” for ascertaining what our founding document means. 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 mentioned. 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 “feel[ing]” 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.
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, 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.” And 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 35 of the 37 state
constitutions in effect at the ratification of the
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 22 of the 37
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
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 Glucksberg, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than 700 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 “[h]istorians 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. As the Court
cautioned in Glucksberg, “[w]e 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.”
Until the latter part of 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 1800s 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. . . .
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 Glucksberg said of assisted suicide.
Respondents and their amici
have no persuasive answer to this historical evidence.
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.” 5 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 under standings of “liberty,” but it is certainly not “ordered liberty.”
Ordered liberty sets limits and defines the boundary between 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 recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” 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,
388 U. S. 1 (1967); the right to marry while in
prison, Turner v. Safley, 482
U. S. 78 (1987); the right to obtain contraceptives,
Griswold v. Connecticut, 381 U. S.
479 (1965), Eisenstadt v. Baird, 405
U. S. 438 (1972), Carey v. Population
Services Int’l, 431 U. S. 678 (1977); the
right to reside with relatives, Moore v.
East Cleveland, 431 U. S. 494 (1977); the
right to make decisions about the education of one’s
children, Pierce v. Society of Sisters,
268 U. S. 510 (1925), Meyer v.
Nebraska, 262 U. S. 390 (1923); the right not
to be sterilized without consent, Skinner v. Oklahoma
ex rel. Williamson, 316 U. S. 535 (1942); and
the right in certain circumstances not to undergo
involuntary surgery, forced administration of drugs, or
other substantially similar procedures, Winston v.
Lee, 470 U. S. 753 (1985), Washington v.
Harper, 494 U. S. 210 (1990), Rochin v.
California, 342 U. S. 165 (1952). Respondents
and the Solicitor General also rely on post-Casey
decisions like Lawrence v. Texas, 539
U. S. 558 (2003) (right to engage in private,
consensual sexual acts), and Obergefell v.
Hodges, 576 U. S. 644 (2015) (right to marry a
person of the same sex).
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.
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.”
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 “mar[k] 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;hat 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. . . .
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
passed. 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.”
It fosters “evenhanded” decisionmaking by requiring that
like cases be decided in a like manner. It
“contributes to the actual and perceived integrity of the
judicial process.” 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.”
We have long recognized, however,
that stare decisis is “not an inexorable
command,” 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.’ ” 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”—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. Therefore, in
appropriate circumstances we must be willing to reconsider
and, if necessary, overrule constitutional decisions.. . .
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.
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 pointed.
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,” 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.” Together, Roe and Casey represent an error that cannot be allowed to stand.
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. In Part II, supra, 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 explained. Roe’s
reasoning quickly drew scathing scholarly criticism, even
from supporters of broad access to abortion. . . .
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. Casey’s “undue burden” test
has scored poorly on the workability scale. 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
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.”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.” To the extent that this rule
applies to pre-viability abortions, it overlaps with the
first rule and appears to impose a different standard.
The third rule complicates the picture even more. Under that rule, “[u]nnecessary 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. . . . I
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.
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’s “undue burden” test has proved to be unworkable. “[P]lucked from nowhere,” it “seems calculated to perpetuate give-it-a-try litigation” before judges assigned an unwieldy and inappropriate task. 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.
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.” 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.
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.” 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 “[t]he 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.” 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.” Payne, 501 U. S., at 828.
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.
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 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 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.” That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.”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, see 505 U. S., at 869.
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. 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. . . .”
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.
Chief Justice Roberts, concurring in the judgment.
Justice Thomas, concurring.
I join the opinion of the
Court because it correctly holds that there is no
constitutional right to abortion. Respondents invoke
one source for that right: the Fourteenth Amendment’s
guarantee that no State shall “deprive any person of
life, liberty, or property without due process of
law.” The Court well explains why, under our
substantive due process precedents, the purported
right to abortion is not a form of “liberty” protected
by the Due Process Clause. Such a right is neither
“deeply rooted in this Nation’s history and tradition”
nor “implicit in the concept of ordered liberty.”
I write separately to
emphasize a second, more fundamental reason why there
is no abortion guarantee lurking in the Due Process
Clause. Considerable historical evidence indicates
that “due process of law” merely required executive
and judicial actors to comply with legislative
enactments and the common law when depriving a person
of life, liberty, or property. Other sources, by
contrast, suggest that “due process of law” prohibited
legislatures “from authorizing the deprivation of a
person’s life, liberty, or property without providing
him the customary procedures to which freemen were
entitled by the old law of England.” Either way, the
Due Process Clause at most guarantees process.
It does not, as the Court’s substantive due process
cases suppose, “forbi[d] the government to infringe
certain ‘fundamental’ liberty interests at all,
no matter what process is provided.”
As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.
The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives); Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised.” Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”
For that reason, in future
cases, we should reconsider all of this Court’s
substantive due process precedents, including Griswold,
Lawrence, and Obergefell. Because
any substantive due process decision is “demonstrably
erroneous.” After overruling these demonstrably
erroneous decisions, the question would remain whether
we would need to decide important antecedent
questions, including whether the Privileges or
Immunities Clause protects any rights that
are not enumerated in the Constitution and, if so, how
to identify those rights. That said, even if the
Clause does protect unenumerated rights, the Court
conclusively demonstrates that abortion is not one of
them under any plausible interpretive approach.
Moreover, apart from being a demonstrably incorrect reading of the Due Process Clause, the “legal fiction” of substantive due process is “particularly dangerous.” At least three dangers favor jettisoning the doctrine entirely.
First, “substantive due process exalts judges at the expense of the People from whom they derive their authority. . . .”
Second, substantive due process distorts other areas of constitutional law. . . . Substantive due process is the core inspiration for many of the Court’s constitutionally unmoored policy judgments.
Third, substantive due process is often wielded to “disastrous ends.” For instance, in Dred Scott v. Sandford, 19 How. 393 (1857), the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories. Now today, the Court rightly overrules Roe and Casey—two of this Court’s “most notoriously incorrect” substantive due process decisions—after more than 63 million abortions have been performed. The harm caused by this Court’s forays into substantive due process remains immeasurable.
Because the Court properly applies our substantive due process precedents to reject the fabrication of a constitutional right to abortion, and because this case does not present the opportunity to reject substantive due process entirely, I join the Court’s opinion. But, in future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.” Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.
We granted certiorari to decide
one question: “Whether all pre-viability prohibitions on
elective abortions are unconstitutional.” That question
is directly implicated here: Mississippi’s Gestational
Age Act generally prohibits abortion after the fifteenth
week of pregnancy—several weeks before a fetus is
regarded as “viable” outside the womb. In urging our
review, Mississippi stated that its case was “an ideal
vehicle” to “reconsider the bright-line viability rule,”
and that a judgment in its favor would “not require
the Court to overturn” Roe v. Wade,
410 U. S. 113 (1973), and Planned
Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833 (1992).
Today, the Court nonetheless rules for Mississippi by doing just that. I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further— certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. I see no sound basis for questioning the adequacy of that opportunity.
But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks. A thoughtful Member of this Court once counseled that the difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.”h I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.
I therefore concur only in the judgment.
Justice Breyer, Justice Sotomayor, and Justice Kagan, dissenting.
For half a century, Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.
Roe and Casey well understood the difficulty and divisiveness of the abortion issue. The Court knew that Americans hold profoundly different views about the “moral[ity]” of “terminating a pregnancy, even in its earliest stage.” And the Court recognized that “the State has legitimate interests from the outset of the pregnancy in protecting” the “life of the fetus that may become a child.” So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the government) thought proper, in light of all the circumstances and complexities of her own life.
Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions. The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life. So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.
Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.
The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases.That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the views of [an individual State’s] citizens” will not matter. The challenge for a woman will be to finance a trip not to “New York [or] California” but to Toronto.
Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.
And no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972). In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. See Lawrence v. Texas, 539 U. S. 558 (2003); Obergefell v. Hodges, 576 U. S. 644 (2015). They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.” But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
One piece of evidence on that
score seems especially salient: The majority’s cavalier
approach to overturning this Court’s precedents. Stare
decisis is the Latin phrase for a foundation
stone of the rule of law: that things decided should
stay decided unless there is a very good reason for
change. It is a doctrine of judicial modesty and
humility. Those qualities are not evident in today’s
opinion. The majority has no good reason for the
upheaval in law and society it sets off. Roe and
Casey have been the law of the land for
decades, shaping women’s expectations of their choices
when an unplanned pregnancy occurs. Women have relied on
the availability of abortion both in structuring their
relationships and in planning their lives. The legal
framework Roe and Casey developed
to balance the competing interests in this sphere has
proved workable in courts across the country. No recent
developments, in either law or fact, have eroded or cast
doubt on those precedents. Nothing, in short, has
changed. Indeed, the Court in Casey already
found all of that to be true. Casey is a
precedent about precedent. It reviewed the same
arguments made here in support of overruling Roe,
and it found that doing so was not warranted. The Court
reverses course today for one reason and one reason
only: because the composition of this Court has changed.
Stare decisis, this Court has often said,
“contributes to the actual and perceived integrity of
the judicial process” by ensuring that decisions are
“founded in the law rather than in the proclivities of
individuals.”Today, the proclivities of individuals
rule. The Court departs from its obligation to
faithfully and impartially apply the law. We dissent. .
The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.
They knew that “the legitimacy of the Court [is] earned over time.” They also would have recognized that it can be destroyed much more quickly. They worked hard to avert that outcome in Casey. The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights.It is hard—no, it is impossible—to conclude that anything else has happened here. One of us once said that “[i]t is not often in the law that so few have so quickly changed so much.” For all of us, in our time on this Court, that has never been more true than today. In overruling Roe and Casey, this Court betrays its guiding principles.
With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.