{"id":473,"date":"2022-06-27T16:58:03","date_gmt":"2022-06-27T16:58:03","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/?post_type=chapter&p=473"},"modified":"2022-06-27T17:22:11","modified_gmt":"2022-06-27T17:22:11","slug":"dobbs-v-jackson","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/suny-monroe-law101\/chapter\/dobbs-v-jackson\/","title":{"raw":"DOBBS v. JACKSON","rendered":"DOBBS v. JACKSON"},"content":{"raw":"

DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN\u2019S HEALTH ORGANIZATION ET AL. <\/strong><\/h2>\r\n

597 U. S. ____ (2022)<\/strong><\/h2>\r\n

(Case Syllabus has been edited by Author)<\/p>\r\nMississippi\u2019s Gestational Age Act provides that \u201c[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.\u201d Miss. Code Ann. \u00a741\u201341\u2013191. Respondents\u2014Jackson Women\u2019s Health Organization, an abortion clinic, and one of its doctors\u2014challenged the Act in Federal District Court, alleging that it violated this Court\u2019s 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\u2019s 15-week restriction on abortion violates this Court\u2019s 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.\r\n\r\nHeld: <\/strong>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.\r\n\r\n(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey\u2019s 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 was based. The Court, therefore, turns to the question that the Casey plurality did not consider.\r\n\r\n(1) First, the Court reviews the standard that the Court\u2019s cases have used to determine whether the Fourteenth Amendment\u2019s reference to \u201cliberty\u201d 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\u2013153. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the \u201cliberty\u201d protected by the Fourteenth Amendment\u2019s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment\u2019s Equal Protection Clause, but that theory is squarely foreclosed by the Court\u2019s precedents, which establish that a State\u2019s 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\u2019s Health Clinic, 506 U. S. 263, 273\u2013 274. Rather, regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures.\r\n\r\n(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation\u2019s history and tradition and whether it is an essential component of \u201cordered liberty.\u201d The Court finds that the right to abortion is not deeply rooted in the Nation\u2019s history and tradition. The underlying theory on which Casey rested\u2014that the Fourteenth Amendment\u2019s Due Process Clause provides substantive, as well as procedural, protection for \u201cliberty\u201d\u2014has long been controversial.\r\n\r\nThe Court\u2019s decisions have held that the Due Process Clause protects two categories of substantive rights\u2014those 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 \u201cdeeply rooted in [our] history and tradition\u201d and whether it is essential to this Nation\u2019s \u201cscheme of ordered liberty.\u201d Timbs v. Indiana, 586 U. S. ___, ___ (internal quotation marks omitted). The term \u201cliberty\u201d alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the \u201cliberty\u201d interest protected by the Due Process Clause. In interpreting what is meant by \u201cliberty,\u201d the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court\u2019s own ardent views about the liberty that Americans should enjoy. For this reason, Cite as: 597 U. S. ____ (2022) the Court has been \u201creluctant\u201d to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.\r\n\r\nGuided by the history and tradition that map the essential components of the Nation\u2019s 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\u2019s faulty historical analysis.\r\n\r\nRespondents\u2019 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\u2019s claim that it is \u201cdoubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,\u201d 410 U. S., at 136, but the great common-law authorities\u2014Bracton, Coke, Hale, and Blackstone\u2014all wrote that a post quickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was \u201cunlawful\u201d 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\u2019s 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.\r\n\r\nInstead 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 \u201cintimate and personal choices\u201d that are \u201ccentral to personal dignity and autonomy,\u201d 505 U. S., at 851. 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 \u201cpotential life.\u201d 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\u2019s historical understanding of ordered liberty does not prevent the people\u2019s elected representatives from deciding how abortion should be regulated.\r\n\r\n(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\u2019s \u201cconcept of existence\u201d 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 \u201cpotential life\u201d and what the law challenged, in this case, calls an \u201cunborn human being.\u201d 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\u2019s conclusion that the Constitution does not confer such a right does not undermine them in any way.\r\n\r\n(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 \u201creduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.\u201d Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455. It \u201ccontributes to the actual and perceived integrity of the judicial process.\u201d 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 \u201cis at its weakest when [the Court] interpret[s] the Constitution,\u201d Agostini v. Felton, 521 U. S. 203, 235. Some of the Court\u2019s 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).\r\n\r\nThe Court\u2019s 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. ___, ___\u2013___. Five factors discussed below weigh strongly in favor of overruling Roe and Casey.\r\n\r\n(1) The nature of the Court\u2019s error.<\/em> 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\u2014those who sought to advance the State\u2019s interest in fetal life\u2014could 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.\r\n\r\n(2) The quality of the reasoning.<\/em> 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\u2013164. Roe\u2019s 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 \u201cright of personal privacy.\u201d 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\u2013600. None of these decisions involved what is distinctive about abortion: its effect on what Roe termed \u201cpotential life.\u201d When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were \u201cconsistent with,\u201d among other things, \u201cthe relative weights of the respective interests involved\u201d and \u201cthe demands of the profound problems of the present day.\u201d 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\u2019s 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\u2019s 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 argument is that viability has changed over time and is heavily dependent on factors\u2014such as medical advances and the availability of quality medical care\u2014that have nothing to do with the characteristics of a fetus.\r\n\r\nWhen Casey revisited Roe almost 20 years later, it reaffirmed Roe\u2019s 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\u2019s Due Process Clause. 505 U. S., at 846. The controlling opinion criticized and rejected Roe\u2019s trimester scheme, 505 U. S., at 872, and substituted a new and obscure \u201cundue burden\u201d test. Casey, in short, either refused to reaffirm or rejected important aspects of Roe\u2019s analysis, failed to remedy glaring deficiencies in Roe\u2019s reasoning, endorsed what it termed Roe\u2019s 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\u2019s status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent.\r\n\r\n(3) Workability.<\/em> Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable\u2014that is, whether it can be understood and applied in a consistent and predictable manner. Casey\u2019s \u201cundue burden\u201d test has scored poorly on the workability scale. The Casey plurality tried to put meaning into the \u201cundue burden\u201d test by setting out three subsidiary rules, but these rules created their own problems. And the difficulty of applying Casey\u2019s new rules surfaced in that very case. Compare 505 U. S., at 881\u2013 887, with id., at 920\u2013922 (Stevens, J., concurring in part and dissenting in part). The experience of the Courts of Appeals provides further evidence that Casey\u2019s \u201cline between\u201d permissible and unconstitutional restrictions \u201chas proved to be impossible to draw with precision.\u201d Janus, 585 U. S., at ___. Casey has generated a long list of Circuit conflicts. Continued adherence to Casey\u2019s unworkable \u201cundue burden\u201d test would undermine, not advance, the \u201cevenhanded, predictable, and consistent development of legal principles.\u201d Payne, 501 U. S., at 827.\r\n\r\n(4) Effect on other areas of law.<\/em> 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).\r\n\r\n(5) Reliance interests. <\/em>Overruling Roe and Casey will not upend concrete reliance interests like those that develop in \u201ccases involving property and contract rights.\u201d Payne, 501 U. S., at 828. In Casey, the controlling opinion conceded that traditional reliance interests were not implicated because getting an abortion is generally \u201cunplanned activity,\u201d and \u201creproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.\u201d 505 U. S., at 856. Instead, the opinion perceived a more intangible form of reliance, namely, that \u201cpeople [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\u201d and that \u201c[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.\u201d 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\u2019s speculative attempt to weigh the relative importance of the interests of the fetus and the mother represent a departure from the \u201coriginal constitutional proposition\u201d that \u201ccourts do not substitute their social and economic beliefs for the judgment of legislative bodies.\u201d Ferguson v. Skrupa, 372 U. S. 726, 729\u2013730.\r\n\r\nThe 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.\r\n\r\n(c) Casey identified another concern, namely, the danger that the public will perceive a decision overruling a controversial \u201cwatershed\u201d decision, such as Roe, as influenced by political considerations or public opinion. 505 U. S., at 866\u2013867. 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\u2019s job is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.\r\n\r\n(d) Under the Court\u2019s 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 \u201csubstitute their social and economic beliefs for the judgment of legislative bodies.\u201d Ferguson, 372 U. S., at 729\u2013730. 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 \u201cstrong presumption of validity.\u201d 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.\r\n\r\nMississippi\u2019s Gestational Age Act is supported by the Mississippi Legislature\u2019s specific findings, which include the State\u2019s asserted interest in \u201cprotecting the life of the unborn.\u201d \u00a72(b)(i). These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents\u2019 constitutional challenge must fail.\r\n\r\n(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.\r\n\r\n945 F. 3d 265, reversed and remanded.\r\n\r\nALITO, 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.\r\n\r\nhttps:\/\/www.supremecourt.gov\/opinions\/21pdf\/19-1392_6j37.pdf - retrieved June 27, 2022.\r\n\r\n ","rendered":"

DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN\u2019S HEALTH ORGANIZATION ET AL. <\/strong><\/h2>\n

597 U. S. ____ (2022)<\/strong><\/h2>\n

(Case Syllabus has been edited by Author)<\/p>\n

Mississippi\u2019s Gestational Age Act provides that \u201c[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.\u201d Miss. Code Ann. \u00a741\u201341\u2013191. Respondents\u2014Jackson Women\u2019s Health Organization, an abortion clinic, and one of its doctors\u2014challenged the Act in Federal District Court, alleging that it violated this Court\u2019s 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\u2019s 15-week restriction on abortion violates this Court\u2019s 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.<\/p>\n

Held: <\/strong>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.<\/p>\n

(a) The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey\u2019s 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 was based. The Court, therefore, turns to the question that the Casey plurality did not consider.<\/p>\n

(1) First, the Court reviews the standard that the Court\u2019s cases have used to determine whether the Fourteenth Amendment\u2019s reference to \u201cliberty\u201d 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\u2013153. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the \u201cliberty\u201d protected by the Fourteenth Amendment\u2019s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment\u2019s Equal Protection Clause, but that theory is squarely foreclosed by the Court\u2019s precedents, which establish that a State\u2019s 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\u2019s Health Clinic, 506 U. S. 263, 273\u2013 274. Rather, regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures.<\/p>\n

(2) Next, the Court examines whether the right to obtain an abortion is rooted in the Nation\u2019s history and tradition and whether it is an essential component of \u201cordered liberty.\u201d The Court finds that the right to abortion is not deeply rooted in the Nation\u2019s history and tradition. The underlying theory on which Casey rested\u2014that the Fourteenth Amendment\u2019s Due Process Clause provides substantive, as well as procedural, protection for \u201cliberty\u201d\u2014has long been controversial.<\/p>\n

The Court\u2019s decisions have held that the Due Process Clause protects two categories of substantive rights\u2014those 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 \u201cdeeply rooted in [our] history and tradition\u201d and whether it is essential to this Nation\u2019s \u201cscheme of ordered liberty.\u201d Timbs v. Indiana, 586 U. S. ___, ___ (internal quotation marks omitted). The term \u201cliberty\u201d alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the \u201cliberty\u201d interest protected by the Due Process Clause. In interpreting what is meant by \u201cliberty,\u201d the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court\u2019s own ardent views about the liberty that Americans should enjoy. For this reason, Cite as: 597 U. S. ____ (2022) the Court has been \u201creluctant\u201d to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.<\/p>\n

Guided by the history and tradition that map the essential components of the Nation\u2019s 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\u2019s faulty historical analysis.<\/p>\n

Respondents\u2019 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\u2019s claim that it is \u201cdoubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,\u201d 410 U. S., at 136, but the great common-law authorities\u2014Bracton, Coke, Hale, and Blackstone\u2014all wrote that a post quickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was \u201cunlawful\u201d 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\u2019s 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.<\/p>\n

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 \u201cintimate and personal choices\u201d that are \u201ccentral to personal dignity and autonomy,\u201d 505 U. S., at 851. 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 \u201cpotential life.\u201d 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\u2019s historical understanding of ordered liberty does not prevent the people\u2019s elected representatives from deciding how abortion should be regulated.<\/p>\n

(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\u2019s \u201cconcept of existence\u201d 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 \u201cpotential life\u201d and what the law challenged, in this case, calls an \u201cunborn human being.\u201d 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\u2019s conclusion that the Constitution does not confer such a right does not undermine them in any way.<\/p>\n

(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 \u201creduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.\u201d Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455. It \u201ccontributes to the actual and perceived integrity of the judicial process.\u201d 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 \u201cis at its weakest when [the Court] interpret[s] the Constitution,\u201d Agostini v. Felton, 521 U. S. 203, 235. Some of the Court\u2019s 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).<\/p>\n

The Court\u2019s 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. ___, ___\u2013___. Five factors discussed below weigh strongly in favor of overruling Roe and Casey.<\/p>\n

(1) The nature of the Court\u2019s error.<\/em> 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\u2014those who sought to advance the State\u2019s interest in fetal life\u2014could 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.<\/p>\n

(2) The quality of the reasoning.<\/em> 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\u2013164. Roe\u2019s 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 \u201cright of personal privacy.\u201d 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\u2013600. None of these decisions involved what is distinctive about abortion: its effect on what Roe termed \u201cpotential life.\u201d When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were \u201cconsistent with,\u201d among other things, \u201cthe relative weights of the respective interests involved\u201d and \u201cthe demands of the profound problems of the present day.\u201d 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\u2019s 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\u2019s 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 argument is that viability has changed over time and is heavily dependent on factors\u2014such as medical advances and the availability of quality medical care\u2014that have nothing to do with the characteristics of a fetus.<\/p>\n

When Casey revisited Roe almost 20 years later, it reaffirmed Roe\u2019s 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\u2019s Due Process Clause. 505 U. S., at 846. The controlling opinion criticized and rejected Roe\u2019s trimester scheme, 505 U. S., at 872, and substituted a new and obscure \u201cundue burden\u201d test. Casey, in short, either refused to reaffirm or rejected important aspects of Roe\u2019s analysis, failed to remedy glaring deficiencies in Roe\u2019s reasoning, endorsed what it termed Roe\u2019s 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\u2019s status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent.<\/p>\n

(3) Workability.<\/em> Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable\u2014that is, whether it can be understood and applied in a consistent and predictable manner. Casey\u2019s \u201cundue burden\u201d test has scored poorly on the workability scale. The Casey plurality tried to put meaning into the \u201cundue burden\u201d test by setting out three subsidiary rules, but these rules created their own problems. And the difficulty of applying Casey\u2019s new rules surfaced in that very case. Compare 505 U. S., at 881\u2013 887, with id., at 920\u2013922 (Stevens, J., concurring in part and dissenting in part). The experience of the Courts of Appeals provides further evidence that Casey\u2019s \u201cline between\u201d permissible and unconstitutional restrictions \u201chas proved to be impossible to draw with precision.\u201d Janus, 585 U. S., at ___. Casey has generated a long list of Circuit conflicts. Continued adherence to Casey\u2019s unworkable \u201cundue burden\u201d test would undermine, not advance, the \u201cevenhanded, predictable, and consistent development of legal principles.\u201d Payne, 501 U. S., at 827.<\/p>\n

(4) Effect on other areas of law.<\/em> 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).<\/p>\n

(5) Reliance interests. <\/em>Overruling Roe and Casey will not upend concrete reliance interests like those that develop in \u201ccases involving property and contract rights.\u201d Payne, 501 U. S., at 828. In Casey, the controlling opinion conceded that traditional reliance interests were not implicated because getting an abortion is generally \u201cunplanned activity,\u201d and \u201creproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.\u201d 505 U. S., at 856. Instead, the opinion perceived a more intangible form of reliance, namely, that \u201cpeople [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\u201d and that \u201c[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.\u201d 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\u2019s speculative attempt to weigh the relative importance of the interests of the fetus and the mother represent a departure from the \u201coriginal constitutional proposition\u201d that \u201ccourts do not substitute their social and economic beliefs for the judgment of legislative bodies.\u201d Ferguson v. Skrupa, 372 U. S. 726, 729\u2013730.<\/p>\n

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.<\/p>\n

(c) Casey identified another concern, namely, the danger that the public will perceive a decision overruling a controversial \u201cwatershed\u201d decision, such as Roe, as influenced by political considerations or public opinion. 505 U. S., at 866\u2013867. 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\u2019s job is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.<\/p>\n

(d) Under the Court\u2019s 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 \u201csubstitute their social and economic beliefs for the judgment of legislative bodies.\u201d Ferguson, 372 U. S., at 729\u2013730. 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 \u201cstrong presumption of validity.\u201d 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.<\/p>\n

Mississippi\u2019s Gestational Age Act is supported by the Mississippi Legislature\u2019s specific findings, which include the State\u2019s asserted interest in \u201cprotecting the life of the unborn.\u201d \u00a72(b)(i). These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents\u2019 constitutional challenge must fail.<\/p>\n

(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.<\/p>\n

945 F. 3d 265, reversed and remanded.<\/p>\n

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.<\/p>\n

https:\/\/www.supremecourt.gov\/opinions\/21pdf\/19-1392_6j37.pdf – retrieved June 27, 2022.<\/p>\n

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