Dobbs v. Jackson Women’s Health Organization (2022)

Summary

Dobbs v. Jackson Women’s Health Organization was a landmark decision addressing whether the Constitution protects the right to an abortion.  In Dobbs, the Supreme Court reviewed the constitutionality of Mississippi’s Gestational Age Act—a law banning most abortions after 15 weeks of pregnancy with exceptions for medical emergencies and fetal abnormalities.  In a divided opinion, the Court upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992)—concluding that the Constitution does not protect the right to an abortion.  As a result, the Court’s decision returned the issue of abortion regulation to the elected branches.  In an opinion concurring in the judgment, Chief Justice Roberts agreed to uphold the Mississippi law, but chided the majority for reaching out to decide the broader question of whether to overrule Roe and Casey.  He would have left that important constitutional question to a future case.  Finally, in a rare joint dissent, Justices Breyer, Kagan, and Sotomayor criticized the Court for unsettling nearly five decades of precedent and undermining the Constitution’s promise of freedom and equality for women.

Read the Full Opinion

Excerpt: Majority Opinion, Justice Samuel Alito

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 ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law).  After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.

Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point in which a fetus was thought to achieve “viability,” i.e., the ability to survive outside the womb.  Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on 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.

At the time of Roe, 30 States still prohibited abortion at all stages.  In the years prior to that decision, about a third of 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.

Eventually, in Planned Parenthood v. Casey, the Court revisited Roe . . . . 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.

Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an ‘undue burden’ on a woman’s right to have an abortion. . . . The three Justices who authored the controlling opinion “call[ed] for the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.

As has become increasingly apparent in the intervening years, Casey did not achieve that goal.  Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly.  Some have recently enacted laws allowing abortion, with few restrictions, at all stage of pregnancy.  Others have tightly restricted abortion beginning well before viability.  And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.

Before us now is one such state law.  The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is now regarded as “viable” outside the womb.  In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.  On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so.

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. . . .

We discuss [substantive due process] in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents’ amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. . . . Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. . . . The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.” . . . And as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. . . .

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. . . .

We begin by considering the critical question of whether the Constitution, properly understood, confers a right to obtain an abortion. . . .

The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right much show that the right is somehow implicit in the constitutional text. . . .

In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what the 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. . . . Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion. 

Until the latter part of the 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 an 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. . . .

This overwhelming consensus endured until the day Roe was decided. At that time, also by the Roe Court’s own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother. And though Roe discerned a “trend toward liberalization” in about “one-third of the States,” those States still criminalized some abortions and regulated them more stringently than Roe would allow. . . .

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 . . . .

We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey . . . .

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 . . . .

[T]o 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 . . . .

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 . . . .

We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard. . . . Under our precedents, rational-basis review is the appropriate standard for such challenges. . . .

We end this opinion where we began.  Abortion presents a profound moral question.  The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.  Roe and Casey arrogated that authority.  We now overrule those decisions and return that authority to the people and their elected representatives.
 

Excerpt: Concurrence, Justice Brett Kavanaugh

Abortion is a profoundly difficult and contentious issue because it presents an irreconcilable conflict between the interests of a pregnant woman who seeks an abortion and the interests of protecting fetal life.  The interests on both sides of the abortion issue are extraordinarily weighty.

The issue before this Court . . . is not the policy or morality of abortion.  The issue before the Court is what the Constitution says about abortion.  The Constitution does not take sides on the issue of abortion. . . . On the question of abortion, the Constitution is . . . neither pro-life nor pro-choice.  The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address. . . .

After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans. . . . But the parties’ arguments have raised other related questions, and I address some of them here. 

First, is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut . . . , Eisenstadt v. Baird . . . , Loving v. Virginia . . . , and Obergefell v. Hodges . . . . I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents. 

Second, as I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel. May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause.
 

Excerpt: Concurrence, Justice Clarence Thomas

I write separately to emphasize a . . . more fundamental reason why there is no abortion right guarantee lurking in the Due Process Clause.  Considerable historical evidence indicates that “due process of law” merely requires executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. . . . [T]he 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.” . . .

 [I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [v. Connecticut], Lawrence [v. Texas], and Obergefell [v. Hodges]. Because any substantive due process decision is “demonstrably erroneous” . . . , we have a duty to “correct the error” established in those precedents . . . . After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. 

Substantive due process exalts judges at the expense of the People from whom they derive their authority. . . . In practice, the Court’s approach for identifying those fundamental rights unquestionably involves policymaking rather than neutral legal analysis.  The Court divines new rights in line with its own, extraconstitutional value preferences and nullifies state laws that do not align with the judicially created rights.

Substantive due process . . . has harmed our country in many ways.  Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.  

Excerpt: Concurring in the Judgment, Chief Justice John Roberts

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 be-yond 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. . . .

Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all. . . .

Almost all know [about a pregnancy] by the end of the first trimester.  Safe and effective abortifacients, moreover, are now readily available, particularly during those early stages.  Given all this, it is no surprise that the vast majority of abortions happen in the first trimester.  Presumably most of the remainder would also take place earlier if later abortions were not a legal option.  Ample evidence thus suggests that a 15-week ban provides sufficient time, absent rare circumstances, for a woman to decide for herself whether to terminate her pregnancy. . . .

The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case. . . .

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. . . . 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.

Excerpt: Joint Dissent, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor

For half a century, Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey 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.

The Court struck a balance, as it often does when values and goals compete.  It held that the State could prohibit abortions until 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. . . .

[O]ne 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. . . . In turn, those rights led, more recently, to rights of same-sex intimacy and marriage. . . . They are all part of the same constitutional fabric, protecting autonomous decision making over the most personal of life decisions. . . .

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. . . . 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 majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom. Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s). 

The majority makes this change based on a single question: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was ratified?” . . . The majority says (and with this much we agree) that the answer to this question is no: In 1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one.

Of course, the majority opinion refers as well to some later and earlier history. On the one side of 1868, it goes back as far as the 13th (the 13th!) century. . . . But that turns out to be wheel-spinning. First, it is not clear what relevance such early history should have, even to the majority. . . . If the early history obviously supported abortion rights, the majority would no doubt say that only the views of the Fourteenth Amendment’s ratifiers are germane. . . . Second—and embarrassingly for the majority—early law in fact does provide some support for abortion rights. Common-law authorities did not treat abortion as a crime before “quickening”—the point when the fetus moved in the womb. And early American law followed the common-law rule. So the criminal law of that early time might be taken as roughly consonant with Roe’s and Casey’s different treatment of early and late abortions. Better, then, to move forward in time. On the other side of 1868, the majority occasionally notes that many States barred abortion up to the time of Roe. That is convenient for the majority, but it is window dressing… Had the pre-Roe liberalization of abortion laws occurred more quickly and more widely in the 20th century, the majority would say (once again) that only the ratifiers’ views are germane.

The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again. . . . If the ratifiers did not understand something as central to freedom, then neither can we.  Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.

As an initial matter, note a mistake in the just preceding sentence.  We referred to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.). . . . Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. . . .

So how is it that, as Casey said, our Constitution, read now, grants rights to women, though it did not in 1868?  How is it that our Constitution subjects discrimination against them to heightened scrutiny?  How is it that our Constitution, through the Fourteenth Amendment’s liberty clause, guarantees access to contraception (also not legally protected in 1868) so that women can decide for themselves whether and when to bear a child?  How is it that until today, that same constitutional clause protected a woman’s right, in the event contraception failed, to end a pregnancy in its earlier stages?

The answer is that this Court has rejected the majority’s pinched view of how to read our Constitution. . . . [I]n the words of the great Chief Justice John Marshall, our Constitution is “intended to endure for ages to come,” and must adapt itself to a future “seen dimly,” if at all. . . . That is indeed why our Constitution is written as it is. The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions. . . .

Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Fourteenth Amendment—the guarantees of “liberty” and “equality” for all.  And nowhere has that approach produced prouder moments, for this country and the Court.  Consider an example Obergefell used a few years ago.  The Court there confronted a claim . . . that the Fourteenth Amendment “must be defined in a most circumscribed manner, with central reference to specific historical practices”—exactly the view today’s majority follows. . . . And the Court specifically rejected that view.  In doing so, the Court reflected on what the proposed, historically circumscribed approach would have meant of interracial marriage.  The Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other.  To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion.  Yet the Court in Loving v. Virginia read the Fourteenth Amendment to embrace the Lovings’ union.  If, Obergefell explained, “rights were defined by who exercised them in the past, then received practices could serve as their own continued justification”—even when they conflict with “liberty” and “equality” as later and more broadly understood.  The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.

That does not mean anything goes.  The majority wishes people to think there are but two alternatives: (1) accept the original applications of the Fourteenth Amendment and no others, or (2) surrender to judges’ “own ardent views,” ungrounded in law, about the liberty that Americans should enjoy.  . . . [A]pplications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.  The second Justice Harlan discussed how to strike the right balance when he explained why he would have invalidated a State’s ban on contraceptive use.  Judges, he said, are not ‘free to roam where unguided speculation might take them. . . . Yet they also must recognize that the constitutional ‘tradition’ of this country is not captured whole at a single moment.  Rather, its meaning gains content from the long sweep of our history and from successive judicial precedents—each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions.  That is why Americans . . . have a right to marry across racial lines.  And it is why, to go back to Justice Harlan’s case, Americans have a right to use contraceptives so they can choose for themselves whether to have children. . . .

Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.). . . .

According to the majority, no liberty interest is present [in the context of abortion]—because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right . . . not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved. And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even “undermine”—any number of other constitutional rights.

Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor. Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to-explain lines.

By overruling Roe, Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority abandons stare decisis, a principle central to the rule of law.  [In previous cases overturning precedent,] the Court found, for example, (1) a change in legal doctrine that undermined or made obsolete the earlier decision; (2) a factual change that had the same effect; or (3) an absence of reliance because the earlier decision was less than a decade old. . . . None of those factors apply here: Nothing—and in particular, no significant legal or factual change—supports overturning a half-century of settled law giving women control over their reproductive lives.

[The Court’s decision] makes radical change too easy and too fast, based on nothing more than the new views of new judges.  The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.  The majority thereby substitutes a rule by judges for the rule of law.

This Court will surely face critical question about how [its new approach] applies.  Must a state law allow abortions when necessary to protect a woman’s life and health?  And if so, exactly when?  How much risk to a woman’s life can a State force her to incur, before the Fourteenth Amendment’s protection of life kicks in?  Suppose a patient with pulmonary hypertension has a 30-to-50 percent risk of dying with ongoing pregnancy; is that enough?  And short of death, how much illness or injury can the State require her to accept, consistent with the Amendment’s protection of liberty and equality?  Further, the Court may face questions about the application of abortion regulations to medical care most people view as quite different from abortion.  What about the morning-after pill?  IUDs?  In vitro fertilization?  And how about the use of dilation and evacuation or medication for miscarriage management? . . .

Justice Jackson once called a decision he dissented from [Korematsu v. United States (1944)] a “loaded weapon,” ready to hand for improper uses. . . . We fear that today’s decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law. . . .

Now a new and bare majority of this Court—acting at practically the first moment possible—overrules Roe and Casey.  It converts a series of dissenting opinions expressing antipathy toward Roe and Casey into a decision greenlighting even total abortion bans.  It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station.  It breaches a core rule-of-law principle, designed to promote constancy in the law.  In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage.  And finally, it undermines the Court’s legitimacy. . . .

With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.
 

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