Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 23 and 24, 2022 (Part I).
Opinion: Dobbs v. Jackson Women’s Health Org., 13-1392
Dobbs v. Jackson Women’s Health Org., 19-1392. By a 5-1-3 vote, the Court overturned Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), holding that the Constitution does not create a right to an abortion and stare decisis does not justify retaining Roe and Casey. Mississippi enacted a law that generally prohibits abortions after the 15th week of pregnancy, several weeks before viability outside the womb. Abortion clinics and one of its doctors (respondents) filed suit alleging that the law violated Roe and Casey. The district court granted summary judgment to respondents, and the Fifth Circuit affirmed. Through an opinion by Justice Alito, the Court reversed and remanded.
The Court began by addressing whether the Constitution confers a right to obtain an abortion. It noted that “[t]he Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.” The Court then observed that Roe found that the right to abortion is part of the right to privacy, which springs (said Roe) from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Casey Court, by contrast, grounded its ruling solely on the view that the right to abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Before tackling that theory, the Court quickly dispensed with the contention that the right to an abortion emanates from the Equal Protection clause. The Court stated that that theory “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.” See Geduldig v. Aiello, 417 U.S. 484 (1974). Returning to the Due Process Clause, the Court stated that when it protects a substantive right “not mentioned anywhere in the Constitution” the Court asks whether “the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’” This requires a historical analysis “because the term ‘liberty’ alone provides little guidance.” Without the limits imposed by history, said the Court, “it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U.S. 45 (1905).”
The Court therefore turned to the history of abortion regulation and rights. Citing authorities such as Blackstone, Coke, and Hale, the Court found that under the common law, abortion was a crime at least after “‘quickening.” And “[a]lthough a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law―much less that abortion was a legal right.” Further, the Court found that the common law embraced “what one might call a proto-felony-murder rule,” under which “if a physician gave a woman ‘with child’ a ‘potion’ to cause an abortion, and the women died, it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her.’” And this rule applied even before quickening. The Court found the record similar in this country during the colonial period. Then, in the 19th century, the vast majority of states abandoned the quickening rule, “criminalizing abortions at all stages of pregnancy.” The Court stated that in 1868, when the Fourteenth Amendment was ratified, 28 out of 37 states had such statutes. And of the remaining nine states, all but one criminalized abortion at all stages by 1910. Further, found the Court, when Roe itself was decided 30 states still prohibited abortion at all stages except to save the life of the mother. Concluded the Court: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
The Court found that, “[i]nstead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy[.]’” (Citation omitted.) The Court here ruled that those rights, however, are not absolute. And “the people of the various states may evaluate” the competing interests of a woman who wants an abortion and a “potential life” differently. The Court then stated that precedent did not support the right to obtain an abortion. The Court listed the numerous cases upon which Casey relied, including Loving v. Virginia, 388 U.S. 1 (1967), and Griswold v. Connecticut, 381 U.S. 479 (1965), as well as post-Casey decisions that embrace the right to make intimate choices such as Lawrence v. Texas, 539 U.S. 558 (2003), and Obergefell v. Hodges, 576 U.S. 644 (2015). The Court distinguished all these cases, saying that “[a]bortion destroys what those decisions call ‘potential life’”; “[n]one of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite.”
The Court then turned to “whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey.” The Court noted that stare decisis “’is at its weakest when we interpret the Constitution” and that “[s]ome of our most important constitutional decisions have overruled prior precedents.” E.g., Brown v. Board of Education, 347 U.S. 483 (1954); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). The Court then provided a two-page footnote listing cases in which it overruled “important constitutional decisions.” Turning back to abortion, the Court found five factors that “weigh strongly in favor of overruling Roe and Casey.”
First, the Court found that Roe was “deeply damaging,” “usurp[ing] the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Second, is the quality of Roe’s reasoning. Roe, said the Court here, “was more than just wrong. It stood on exceptionally weak grounds.” Summarized the Court: “It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to ‘viability’) was never raised by any party and has never been plausibly explained.” And “[w]hen Casey revisited Roe almost 20 years later, very little of Roe’s reasoning was defended or preserved.”
Third, the Court looked to workability and found that Casey’s “undue burden” test fares poorly in that regard. How does a court determine whether a burden is “due” or “undue”? What counts as a “substantial obstacle” to obtaining an abortion? What constitutes an “unnecessary” health regulation? The Court observed that, not surprisingly, “Casey has generated a long list of Circuit conflicts.” Fourth, the Court found that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.” “Members of this Court have repeatedly lamented that ‘no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.’”
Fifth and last, the Court found that overruling Roe and Casey would not upend cognizable reliance interests. As an initial matter, traditional reliance interests―“‘where advance planning of great precision is most obviously a necessity’”―are not present here. The Court then addressed Casey’s contention that a “more intangible form of reliance” existed here: that (in Casey’s words) “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.” The Court here responded (quoting Chief Justice Rehnquist’s dissent in Casey) that “this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’” “That form of reliance depends on an empirical question that is hard for anyone―and in particular, for a court―to assess, namely, the effect of the abortion right on society and in particular on the lives of women.” The Court then repeated that its decision here does not “cast doubt on precedents that do not concern abortion,” such as Obergefell, Lawrence, and Griswold.
Next, the Court rebutted a consideration prominent in Casey, namely, that “[a] decision overruling Roe would be perceived as having been made ‘under fire’ and as a ‘surrender to political pressure,’ and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe[.]” (Citation omitted.) The Court here stated that “we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. . . . In suggesting otherwise, the Casey plurality went beyond this Court’s role in our constitutional system.” The Court added that “[t]he Casey plurality also misjudged the practical limits of this Court’s influence. Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half century.”
After responding to Chief Justice Roberts’ concurring opinion, the Court turned to the standard that will govern challenges to state abortion regulations going forward. The Court held that “rational-basis review is the appropriate standard,” which means abortion regulations are “entitled to a ‘strong presumption of validity’” and that the legitimate interests that justify sustaining such regulations “include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.” (Citation omitted.) The Court closed by saying that “[a]bortion 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.”
Justice Thomas filed a concurring opinion. He wrote to emphasize his view that the Fourteenth Amendment Due Process Clause guarantees only process; it does not secure substantive rights. Justice Thomas would reconsider and overrule “all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” He added that the doctrine of substantive due process is “’particularly dangerous’” because it “’exalts judges at the expense of the People from whom they derive their authority’”; it “distorts other areas of constitutional law”; and (as in Dred Scott) it “is often wielded to ‘disastrous ends.’”
Justice Kavanaugh filed a concurring opinion. At its outset, he noted that “[a]bortion 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 in protecting fetal life. The interests on both sides of the abortion issue are extraordinarily weighty.” But in his view, “[t]he Constitution does not take sides on the issue[.]” Among other things, that means that the Constitution (contrary to the views of some amici) does not “outlaw abortion throughout the United States.” Justice Kavanaugh also agreed that “the Constitution does not freeze the American people’s rights as of 1791 or 1868,” though “when it comes to creating new rights” that should be done by legislatures or amending the Constitution. Justice Kavanaugh, contrary to Justice Thomas, views stare decisis as “imposing a high bar before this Court may overrule a precedent.” But it’s not absolute, and many of the Court’s greatest decisions have overruled precedents. He agreed with the Court’s application of the traditional stare decisis factors here. Justice Kavanaugh closed by making two important points. First, “[o]verruling Roe does not mean the overruling of” precedents such as Griswold, Loving, and Obergefell. And second, in his view the constitutional right to interstate travel means a state may not bar a resident from traveling to another state to obtain an abortion. Nor may a state retroactively impose punishment for an abortion that took place before this decision takes effect.
Chief Justice Roberts filed an opinion concurring in the judgment. He “would take a more measured course” and only overrule the viability line that Roe and Casey established. The “right at issue,” he said, is “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.” But going further than that, as the majority does, violates the “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.” On discarding the viability line, Chief Justice Roberts stated that it “came out of thin air”; “neither Roe nor Casey made a persuasive or even colorable argument for” that line; and the viability line “is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of ‘potential life.’” He added that most other countries do not apply a viability line.
All that said, however, this does not “require that we also take the draconian step of altogether eliminating the abortion right first recognized in Roe.” Chief Justice Roberts noted that when Mississippi petitioned for review it did not ask the Court to overturn Roe and Casey entirely. Generally, he said, courts should resolve cases on the narrowest grounds available. And Roe and Casey are not “inextricably entangled with and dependent upon the viability standard.” Further, explained Chief Justice Roberts, stare decisis counsels against overruling those two decisions, for the Court’s decision to do so “is a serious jolt to the legal system” and “respondents argue that generations of women have relief on the right to an abortion in organizing their relationships and planning their future.” Chief Justice Roberts would therefore uphold Mississippi’s statute but go no further.
Justices Breyer, Sotomayor, and Kagan wrote a joint dissenting opinion. Defending Roe and Casey’s reasoning, the dissent stated that they “were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. . . . For in this Nation, we do not believe that a government controlling all private choices is compatible with a free people.” Roe explained, said the dissent, “that a long line of precedents, ‘founded in the Fourteenth Amendment’s concept of personal liberty,’ protected individual decisionmaking related to ‘marriage, procreation, contraception, family relationships, and child rearing and education.’” The decision “struck a balance” between “the myriad ways bearing a child can alter the ‘life and future’ of a woman and other members of her family” and the state’s “’important interests’” in “’protecting potential life.’” Early on a woman’s choice prevails, but “’at some point the state interests’” become “’dominant.’” And Casey, said the dissent, offered “a full-throated restatement of a woman’s right to choice,” grounding it in Fourteenth Amendment “liberty.” “In reaffirming the right Roe recognized, the Court took full account of the diversity of views on abortion, and the importance of various competing state interests.” So Casey, too, “struck a balance,” though an incrementally different one than Roe. By contrast, said the dissent, the majority here “erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).”
The dissent disagreed that history is dispositive, though it noted that early common law and early American law did not treat abortion as a crime prior to quickening. More fundamentally, though, the dissent disagreed that “we in the 21st century must read the Fourteenth Amendment just as its ratifiers did.” First, “’people’ did not ratify the Fourteenth Amendment. Men did.” “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.” But, insisted the dissent, our Constitution does “grant rights to women, though it did not in 1868.” That is because our Constitution “defined rights in general terms, to permit future evolution of their scope and meaning.” “That does not mean anything goes.” “Rather,” the Constitution’s “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, to go back to Obergefell’s example, 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.” In the dissent’s view, “[i]t was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decisionmaking.” The dissent took issue with the majority’s insistence that it is not calling into question other substantive due process decisions. If the only thing that matters is the law as it stood circa 1868, then Griswold, Loving, and Obergefell are necessarily called into question.
The dissent then turned to stare decisis, which serves many purposes, including “ensuring that decisions ‘are founded in the law rather than in the proclivities of individuals.’” The dissent insisted that none of the 30 or so cases the majority listed as overruling precedent are comparable to what the Court did here, for in each “the Court relied on one or more of the traditional stare decisis factors”; yet “[n]one of those factors apply here.” Turning to the majority’s stare decisis reasoning, the dissent first stated that Casey’s undue burden standard is not unworkable; standards like it “are ubiquitous in the law.” Meanwhile, it is the majority’s ruling that creates a host of new questions, such as “[h]ow much risk to a woman’s life can a State force her to incur,” “how much illness or injury can the State require her to accept,” and “[c]an a State bar women from traveling to another State to obtain an abortion,” to name a few.
Second, asserted the dissent, no legal or factual changes have occurred since Roe and Casey that undermine them. Legally, later cases (such as Lawrence and Obergefell) relied on Roe and Casey. Factually, “[w]omen continue to experience unplanned pregnancies and unexpected developments in pregnancies. Pregnancies continue to have enormous physical, social, and economic consequences. Even an uncomplicated pregnancy imposes significant strain on the body, unavoidably involving significant physiological change and excruciating pain. For some women, pregnancy and childbirth can mean life-altering physical ailments or even death.”
Third, the dissent maintained that Roe and Casey have created “enormous reliance interests.” “’The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women. By characterizing Casey’s reliance arguments as ‘generalized assertions about the national psyche,’ it reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.” (Citations omitted.) Stated the dissent, “For half a century now, in Casey’s words, ‘[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.’ Indeed, all women now of childbearing age have grown up expecting that they would be able to avail themselves of Roe’s and Casey’s protections. The disruption of overturning Roe and Casey will therefore be profound.” (Citations omitted.) The dissent noted that about a quarter of American women will have an abortion before age 45; the impact of overruling Roe and Casey will be most severe on poor women; and “the expectation of reproductive control . . . helps define a woman as an ‘equal citizen,’ with all the rights, privileges, and obligations that status entails.”
Finally, the dissent maintained that “the very controversy surrounding Roe and Casey” “counsels against the majority’s ruling.” “Casey’s reason for acknowledging public conflict was the exact opposite of what the majority insinuates. Casey addressed the national controversy in order to emphasize how important it was, in that case of all cases, for the Court to stick to the law.” “And,” added the dissent, “as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle.” The dissent concluded by saying that the three Justices in the Casey plurality knew that “[t]he American public . . . should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ alone expunge their rights. It is hard—no, it is impossible—to conclude that anything else has happened here.” (Citation omitted.)