The Supreme Court of the United States, a few minutes ago, released its opinion in Dobbs v Jackson overturning both Roe v Wade and Planned Parenthood v Casey, thus returning the issue of abortion to the People and their elected representatives. The decision is either 6-3 or 5-4 depending how you look at it, as Roberts concurred with the judgment supporting Mississippi’s law, but failed to concur with the majority’s opinion overturning the evil mass baby-murdering precedent.
I’m still reading Bruen, hard to keep up with this SCOTUS. Remember to thank Ukraine for our independent judiciary.
Here is the slip opinion, copying the syllabus here:
SUPREME COURT OF THE UNITED STATES
Syllabus
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
Mississippi’s Gestational Age Act provides that “[e]xcept 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 (15) weeks.”
Miss. Code Ann. §41–41–191. Respondents—Jackson Women’s Health
Organization, an abortion clinic, and one of its doctors—challenged the
Act in Federal District Court, alleging that it violated this Court’s precedents establishing a constitutional right to abortion, in particular Roe
v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa.
v. Casey, 505 U. S. 833. The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement
of the Act, reasoning that Mississippi’s 15-week restriction on abortion
violates this Court’s cases forbidding States to ban abortion pre-viability. The Fifth Circuit affirmed. Before this Court, petitioners defend
the Act on the grounds that Roe and Casey were wrongly decided and
that the Act is constitutional because it satisfies rational-basis review.
Held: The Constitution does not confer a right to abortion; Roe and Casey
are overruled; and the authority to regulate abortion is returned to the
people and their elected representatives. Pp. 8–79.
(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling
opinion skipped over that question and reaffirmed Roe solely on the
basis of stare decisis. A proper application of stare decisis, however,
requires an assessment of the strength of the grounds on which Roe
2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Syllabus
was based. The Court therefore turns to the question that the Casey
plurality did not consider. Pp. 8–32.
(1) First, the Court reviews the standard that the Court’s cases
have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. The Constitution makes
no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a
right to privacy that springs from the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. See 410 U. S., at 152–153. The Casey Court
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. Others have suggested that support can
be found in the Fourteenth Amendment’s Equal Protection Clause, but
that theory is squarely foreclosed by the Court’s 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. See Geduldig v. Aiello, 417 U. S. 484, 496,
n. 20; Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–
274. Rather, regulations and prohibitions of abortion are governed by
the same standard of review as other health and safety measures.
Pp. 9–11.
(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an
essential component of “ordered liberty.” The Court finds that the
right to abortion is not deeply rooted in the Nation’s history and tradition. The underlying theory on which Casey rested—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well
as procedural, protection for “liberty”—has long been controversial.
The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by
the first eight Amendments to the Constitution and those rights
deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories,
the question is whether the right is “deeply rooted in [our] history and
tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 586 U. S. ___, ___ (internal quotation
marks omitted). The term “liberty” alone provides little guidance.
Thus, historical inquiries are essential whenever the Court is asked to
recognize a new component of the “liberty” interest protected by the
Due Process Clause. In interpreting what is meant by “liberty,” the
Court must guard against the natural human tendency to confuse
what the Fourteenth Amendment protects with the Court’s own ardent
views about the liberty that Americans should enjoy. For this reason,
Cite as: 597 U. S. ____ (2022) 3
Syllabus
the Court has been “reluctant” to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.
Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the
Fourteenth Amendment clearly does not protect the right to an abortion. 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, no federal or state court had recognized such a right. Nor
had any scholarly treatise. Indeed, 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 the Fourteenth
Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until
the day Roe was decided. Roe either ignored or misstated this history,
and Casey declined to reconsider Roe’s faulty historical analysis.
Respondents’ argument that this history does not matter flies in the
face of the standard the Court has applied in determining whether an
asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. 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,” 410 U. S., at 136, but the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a postquickening abortion was a crime. Moreover, many authorities 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. The Solicitor General suggests that history supports an
abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal, see Mills v. Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83
N. C. 630, 632, and regardless, the fact that many States in the late
18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.
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, 410 U. S., at 154, and Casey described
it as the freedom to make “intimate and personal choices” that are
“central to personal dignity and autonomy,” 505 U. S., at 851. Ordered
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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.” Roe, 410 U. S., at 150; Casey, 505 U. S.,
at 852. But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. Pp. 11–30.
(3) Finally, the Court considers whether a right to obtain an abortion is part of a broader entrenched right that is supported by other
precedents. The Court concludes the right to obtain an abortion cannot
be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s
“concept of existence” prove too much. Casey, 505 U. S., at 851. 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 is different because it destroys what Roe
termed “potential life” and what the law challenged in this case calls
an “unborn human being.” None of the other decisions cited by Roe
and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion,
and the Court’s conclusion that the Constitution does not confer such
a right does not undermine them in any way. Pp. 30–32.
(b) The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. Stare decisis plays an important role and
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 v. Marvel Entertainment, LLC, 576 U. S. 446, 455. It “contributes to the actual and perceived integrity of the judicial process.”
Payne v. Tennessee, 501 U. S. 808, 827. And it restrains judicial hubris
by respecting the judgment of those who grappled with important
questions in the past. But stare decisis is not an inexorable command,
Pearson v. Callahan, 555 U. S. 223, 233, and “is at its weakest when
[the Court] interpret[s] the Constitution,” Agostini v. Felton, 521 U. S.
203, 235. Some of the Court’s most important constitutional decisions
have overruled prior precedents. See, e.g., Brown v. Board of Education, 347 U. S. 483, 491 (overruling the infamous decision in Plessy v.
Ferguson, 163 U. S. 537, and its progeny).
The Court’s cases have identified factors that should be considered
in deciding when a precedent should be overruled. Janus v. State,
County, and Municipal Employees, 585 U. S. ___, ___–___. Five factorsCite as: 597 U. S. ____ (2022) 5
Syllabus
discussed below weigh strongly in favor of overruling Roe and Casey.
Pp. 39–66.
(1) The nature of the Court’s error. Like the infamous decision in
Plessy v. Ferguson, Roe was also egregiously wrong and on a collision
course with the Constitution from the day it was decided. Casey perpetuated its errors, 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 disagreed with Roe. Pp. 43–45.
(2) The quality of the reasoning. Without any grounding in the
constitutional text, history, or precedent, Roe imposed on the entire
country a detailed set of rules for pregnancy divided into trimesters
much like those that one might expect to find in a statute or regulation.
See 410 U. S., at 163–164. Roe’s failure even to note the overwhelming
consensus of state laws in effect in 1868 is striking, and what it said
about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of factfinding that might be undertaken by a legislative committee, and did
not explain why the sources on which it relied shed light on the meaning of the Constitution. As to precedent, citing a broad array of cases,
the Court found support for a constitutional “right of personal privacy.”
Id., at 152. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. See Whalen v. Roe, 429
U. S. 589, 599–600. 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,” among
other things, “the relative weights of the respective interests involved”
and “the demands of the profound problems of the present day.” Roe,
410 U. S., at 165. These 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. An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions. See id., at 163. The arbitrary
viability line, which Casey termed Roe’s central rule, has not found
much support among philosophers and ethicists who have attempted
to justify a right to abortion. The most obvious problem with any such
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Syllabus
argument is that viability has changed over time and is heavily dependent on factors—such as medical advances and the availability of
quality medical care—that have nothing to do with the characteristics
of a fetus.
When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s
central holding, but pointedly refrained from endorsing most of its reasoning. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. 505 U. S., at 846. The controlling opinion
criticized and rejected Roe’s trimester scheme, 505 U. S., at 872, and
substituted a new and obscure “undue burden” test. 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
test with no firm grounding in constitutional text, history, or precedent. Pp. 45–56.
(3) Workability. Deciding whether a precedent should be overruled depends in part on 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. 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. And the difficulty of applying Casey’s new rules surfaced in that very case. Compare 505 U. S., at 881–
887, with id., at 920–922 (Stevens, J., concurring 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, 585 U. S., at ___. Casey has generated a long list of Circuit conflicts. Continued adherence to Casey’s unworkable “undue burden”
test would undermine, not advance, the “evenhanded, predictable, and
consistent development of legal principles.” Payne, 501 U. S., at 827.
Pp. 56–62.
(4) 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 v. Louisiana, 590 U. S. ___, ___ (KAVANAUGH, J., concurring in
part). Pp. 62–63.
(5) Reliance interests. Overruling Roe and Casey will not upend
concrete reliance interests like those that develop in “cases involving
property and contract rights.” Payne, 501 U. S., at 828. In Casey, the
controlling opinion conceded that traditional reliance interests were
Cite as: 597 U. S. ____ (2022) 7
Syllabus
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.”
505 U. S., at 856. Instead, the opinion perceived a more intangible
form of reliance, namely, 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.” Ibid. The contending sides in this case make impassioned and
conflicting arguments about the effects of the abortion right on the
lives of women as well as the status of the fetus. The Casey plurality’s
speculative attempt to weigh the relative importance of the interests
of the fetus and the 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.” Ferguson
v. Skrupa, 372 U. S. 726, 729–730.
The Solicitor General suggests that overruling Roe and Casey would
threaten the protection of other rights under the Due Process Clause.
The Court emphasizes that this 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.
Pp. 63–66.
(c) Casey identified another concern, namely, the danger that the
public will perceive a decision overruling a controversial “watershed”
decision, such as Roe, as influenced by political considerations or public opinion. 505 U. S., at 866–867. But the Court cannot allow its decisions to be affected by such extraneous concerns. 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 would still be
the law. The Court’s job is to interpret the law, apply longstanding
principles of stare decisis, and decide this case accordingly. Pp. 66–69.
(d) Under the Court’s precedents, rational-basis review is the appropriate standard to apply when state abortion regulations undergo constitutional challenge. Given that procuring an abortion is not a fundamental constitutional right, 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,
372 U. S., at 729–730. That applies even when the laws at issue concern matters of great social significance and moral substance. A law
regulating abortion, like other health and welfare laws, is entitled to a
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“strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319. It
must be sustained if there is a rational basis on which the legislature
could have thought that it would serve legitimate state interests. Id.,
at 320.
Mississippi’s Gestational Age Act is supported by the Mississippi
Legislature’s specific findings, which include the State’s asserted interest in “protecting the life of the unborn.” §2(b)(i). These legitimate
interests provide a rational basis for the Gestational Age Act, and it
follows that respondents’ constitutional challenge must fail. Pp. 76–
78.
(e) 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. The Court
overrules those decisions and returns that authority to the people and
their elected representatives. Pp. 78–79.
945 F. 3d 265, reversed and remanded.
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.
