*1 OCTOBER TERM, 2021 (Slip Opinion)
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
Syllabus
DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL . v . JACKSON WOMEN’S HEALTH ORGANIZATION ET AL . CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 19–1392. Argued December 1, 2021—Decided June 24, 2022 Mississippi’s Gestational Age Act provides that “[e]xcept in a medical
emergency or in the case of a severe fetal abnormality, a person shall
not intentionally or knowingly perform . . . or induce an abortion of an
unborn human being if the probable gestational age of the unborn hu-
man being has been determined to be greater than fifteen (15) weeks.”
Miss. Code Ann. §41–41–191. Respondents—Jackson Women’s Health
Organization, an abortion clinic, and one of its doctors—challenged the
Act in Federal District Court, alleging that it violated this Court’s prec-
edents establishing a constitutional right to abortion, in particular
Roe
v.
Wade
,
are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. Pp. 8–79.
(a) The critical question is whether the Constitution, properly un- derstood, confers a right to obtain an abortion. ’s controlling opinion skipped over that question and reaffirmed 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
Syllabus
was based. The Court therefore turns to the question that the Casey plurality did not consider. Pp. 8–32.
(1) First, the Court reviews the standard that the Court’s cases
have used to determine whether the Fourteenth Amendment’s refer-
ence to “liberty” protects a particular right. The Constitution makes
no express reference to a right to obtain an abortion, but several con-
stitutional provisions have been offered as potential homes for an im-
plicit 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
(2) Next, the Court examines whether the right to obtain an abor- tion is rooted in the Nation’s history and tradition and whether it is an essential component of “ordered liberty.” The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradi- tion. The underlying theory on which rested—that the Four- teenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial.
The Court’s decisions have held that the Due Process Clause pro-
tects two categories of substantive rights—those rights guaranteed by
the first eight Amendments to the Constitution and those rights
deemed fundamental that are not mentioned anywhere in the Consti-
tution. In deciding whether a right falls into either of these categories,
the question is whether the right is “deeply rooted in [our] history and
tradition” and whether it is essential to this Nation’s “scheme of or-
dered liberty.”
Timbs
v.
Indiana
,
Syllabus
the Court has been “reluctant” to recognize rights that are not men-
tioned in the Constitution.
Collins Harker Heights
,
Guided by the history and tradition that map the essential compo- nents of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abor- tion. 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 ex- panded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abor- tion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe ’s faulty historical analysis.
Respondents’ argument that this history does not matter flies in the
face of the standard the Court has applied in determining whether an
asserted right that is nowhere mentioned in the Constitution is never-
theless protected by the Fourteenth Amendment. The Solicitor Gen-
eral repeats
Roe
’s claim that it is “doubtful . . . abortion was ever firmly
established as a common-law crime even with respect to the destruc-
tion of a quick fetus,”
Instead of seriously pressing the argument that the abortion right
itself has deep roots, supporters of and contend that the
abortion right is an integral part of a broader entrenched right.
Roe
termed this a right to privacy,
Syllabus
liberty sets limits and defines the boundary between competing inter-
ests.
Roe
and
Casey
each struck a particular balance between the in-
terests of a woman who wants an abortion and the interests of what
they termed “potential life.”
Roe
,
(3) Finally, the Court considers whether a right to obtain an abor-
tion 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 abor-
tion through appeals to a broader right to autonomy and to define one’s
“concept of existence” prove too much.
Casey
,
(b) The doctrine of
stare decisis
does not counsel continued ac-
ceptance of and .
Stare decisis
plays an important role and
protects the interests of those who have taken action in reliance on a
past decision. It “reduces incentives for challenging settled prece-
dents, saving parties and courts the expense of endless relitigation.”
Kimble
v.
Marvel Entertainment, LLC
,
The Court’s cases have identified factors that should be considered
in deciding when a precedent should be overruled.
Janus
v.
State,
County, and Municipal Employees
,
Syllabus
discussed below weigh strongly in favor of overruling Roe and Casey . Pp. 39–66.
(1) The nature of the Court’s error . Like the infamous decision in Plessy Ferguson , Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey per- petuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a win- ning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe . Pp. 43–45.
(2)
The quality of the reasoning
. Without any grounding in the
constitutional text, history, or precedent,
Roe
imposed on the entire
country a detailed set of rules for pregnancy divided into trimesters
much like those that one might expect to find in a statute or regulation.
See
Syllabus
argument is that viability has changed over time and is heavily de- pendent on factors—such as medical advances and the availability of quality medical care—that have nothing to do with the characteristics of a fetus.
When
Casey
revisited
Roe
almost 20 years later, it reaffirmed
Roe’
s
central holding
,
but pointedly refrained from endorsing most of its rea-
soning. The Court abandoned any reliance on a privacy right and in-
stead grounded the abortion right entirely on the Fourteenth Amend-
ment’s Due Process Clause.
(3)
Workability
. Deciding whether a precedent should be over-
ruled depends in part on whether the rule it imposes is workable—that
is, whether it can be understood and applied in a consistent and pre-
dictable manner.
Casey
’s “undue burden” test has scored poorly on the
workability scale. The
Casey
plurality tried to put meaning into the
“undue burden” test by setting out three subsidiary rules, but these
rules created their own problems. And the difficulty of applying
Ca-
sey
’s new rules surfaced in that very case. Compare
(4) Effect on other areas of law . Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. See Ra- mos v. Louisiana , 590 U. S. ___, ___ (K AVANAUGH , J., concurring in part). Pp. 62–63.
(5)
Reliance interests.
Overruling
Roe
and
Casey
will not upend
concrete reliance interests like those that develop in “cases involving
property and contract rights.”
Payne
,
Syllabus
not implicated because getting an abortion is generally “unplanned ac-
tivity,” and “reproductive planning could take virtually immediate ac-
count of any sudden restoration of state authority to ban abortions.”
505 U. S., at 856. Instead, the opinion perceived a more intangible
form of reliance, namely, that “people [had] organized intimate rela-
tionships 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 Na-
tion has been facilitated by their ability to control their reproductive
lives.”
Ibid.
The contending sides in this case make impassioned and
conflicting arguments about the effects of the abortion right on the
lives of women as well as the status of the fetus. The
Casey
plurality’s
speculative attempt to weigh the relative importance of the interests
of the fetus and the mother represent a departure from the “original
constitutional proposition” that “courts do not substitute their social
and economic beliefs for the judgment of legislative bodies.”
Ferguson
v.
Skrupa
,
The Solicitor General suggests that overruling Roe and would threaten the protection of other rights under the Due Process Clause. The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. Pp. 63–66.
(c)
Casey
identified another concern, namely, the danger that the
public will perceive a decision overruling a controversial “watershed”
decision, such as , as influenced by political considerations or pub-
lic opinion.
(d) Under the Court’s precedents, rational-basis review is the appro-
priate standard to apply when state abortion regulations undergo con-
stitutional challenge. Given that procuring an abortion is not a funda-
mental constitutional right, it follows that the States may regulate
abortion for legitimate reasons, and when such regulations are chal-
lenged under the Constitution, courts cannot “substitute their social
and economic beliefs for the judgment of legislative bodies.”
Ferguson
,
Syllabus
“strong presumption of validity.”
Heller Doe
,
Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted in- terest in “protecting the life of the unborn.” §2(b)(i). These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail. Pp. 76– 78.
(e) Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohib- iting abortion. and arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives. Pp. 78–79.
A LITO , J., delivered the opinion of the Court, in which T HOMAS , G OR- SUCH , K AVANAUGH , and B ARRETT , JJ., joined. T HOMAS , J., and K A- VANAUGH , J., filed concurring opinions. R OBERTS , C. J., filed an opinion concurring in the judgment. B REYER , S OTOMAYOR , and K AGAN , JJ., filed a dissenting opinion. *9 NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES
_________________ No. 19–1392 _________________ THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL ., PETITIONERS JACKSON WOMEN’S
HEALTH ORGANIZATION, ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT [June 24, 2022] J USTICE A LITO delivered the opinion of the Court. Abortion presents a profound moral issue on which Amer- icans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all cir- cumstances, and those within this group hold a variety of views about the particular restrictions that should be im- posed.
For the first 185 years after the adoption of the Constitu-
tion, each State was permitted to address this issue in ac-
cordance with the views of its citizens. Then, in 1973, this
Court decided v.
Wade
,
Under this scheme, each trimester of pregnancy was reg- ulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at 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,” [1] it found that this interest could not justify any restriction on pre- viability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe ’s reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave “al- most no sense of an obligation to try to be.”
At the time of Roe , 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. [3] As
[1]
Roe Wade
,
[2] J. Ely, The Wages of Crying Wolf: A Comment on v. Wade , 82 Yale L. J. 920, 926, 947 (1973) (Ely) (emphasis deleted). L. Tribe, Foreword: Toward a Model of Roles in the Due Process of
Life and Law, 87 Harv. L. Rev. 1, 2 (1973) (Tribe).
Justice Byron White aptly put it in his dissent, the decision
represented the “exercise of raw judicial power,” 410 U. S.,
at 222, and it sparked a national controversy that has em-
bittered our political culture for a half century.
[4]
Eventually, in
Planned Parenthood of Southeastern Pa.
v.
,
Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were
[4] See R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 1208 (1992) (“ Roe . . . halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue”).
[5] See
[6] See id ., at 944 (Rehnquist, C. J., concurring in judgment in part and dissenting in part); id., at 979 (Scalia, J., concurring in judgment in part and dissenting in part).
[7] See id ., at 843 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). [8] Id ., at 853. Id ., at 860.
overruled in toto , and Roe itself was overruled in part. [10] Ca- sey 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. [11] The decision pro- vided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national divi- sion” 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 re- strictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to over- rule Roe and Casey and allow the States to regulate or pro- hibit pre-viability abortions.
Before us now is one such state law. The State of Missis- sippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of preg- nancy—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 and 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
[10]
Id
., at 861, 870, 873 (overruling
Akron
v.
Akron Center for Reproduc-
tive Health, Inc.
,
[11]
We hold that Roe and Case y must be overruled. The Con- stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, in- cluding 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 his- tory and tradition” and “implicit in the concept of ordered liberty.” Washington v . Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
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 Four- teenth 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.” ’s defenders char- acterize the abortion right as similar to the rights recog- nized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowl- edged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “un- born human being.” [13]
Stare decisis , the doctrine on which ’s controlling Miss. Code Ann. §41–41–191(4)(b) (2018). *14 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, and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of
abortion to the people’s elected representatives. “The per-
missibility of abortion, and the limitations, upon it, are to
be resolved like most important questions in our democ-
racy: by citizens trying to persuade one another and then
voting.” ,
I
The law at issue in this case, Mississippi’s Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018), contains this central provision: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abor- tion 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.” §4(b).
To support this Act, the legislature made a series of fac- tual findings. It began by noting that, at the time of enact- ment, only six countries besides the United States “per- mit[ted] nontherapeutic or elective abortion-on-demand after the twentieth week of gestation.” [15] §2(a). The legisla-
[14] The Act defines “gestational age” to be “the age of an unborn human being as calculated from the first day of the last menstrual period of the pregnant woman.” §3(f ). Those other six countries were Canada, China, the Netherlands,
ture then found that at 5 or 6 weeks’ gestational age an “un-
born human being’s heart begins beating”; at 8 weeks the
“unborn human being begins to move about in the womb”;
at 9 weeks “all basic physiological functions are present”; at
10 weeks “vital organs begin to function,” and “[h]air, fin-
gernails, and toenails . . . begin to form”; at 11 weeks “an
unborn human being’s diaphragm is developing,” and he or
she may “move about freely in the womb”; and at 12 weeks
the “unborn human being” has “taken on ‘the human form’
in all relevant respects.” §2(b)(i) (quoting
Gonzales
v.
Car-
hart
,
Respondents are an abortion clinic, Jackson Women’s Health Organization, and one of its doctors. On the day the Gestational Age Act was enacted, respondents filed suit in Federal District Court against various Mississippi officials, alleging that the Act violated this Court’s precedents estab- lishing a constitutional right to abortion. The District North Korea, Singapore, and Vietnam. See A. Baglini, Charlotte Lozier Institute, Gestational Limits on Abortion in the United States Compared to International Norms 6–7 (2014); M. Lee, Is the United States One of Seven Countries That “Allow Elective Abortions After 20 Weeks of Preg- nancy?” Wash. Post (Oct. 8, 2017), www.washingtonpost.com/news/fact- checker/wp/2017/10/09/is-the-united-states-one-of-seven-countries-that- allow-elective-abortions-after-20-weeks-of-preganacy (stating that the claim made by the Mississippi Legislature and the Charlotte Lozier In- stitute was “backed by data”). A more recent compilation from the Cen- ter for Reproductive Rights indicates that Iceland and Guinea-Bissau are now also similarly permissive. See The World’s Abortion Laws, Center for Reproductive Rights (Feb. 23, 2021), https://reproductiverights.org/ maps/worlds-abortion-laws/.
Court granted summary judgment in favor of respondents
and permanently enjoined enforcement of the Act, reason-
ing that “viability marks the earliest point at which the
State’s interest in fetal life is constitutionally adequate to
justify a legislative ban on nontherapeutic abortions” and
that 15 weeks’ gestational age is “prior to viability.”
Jack-
son Women’s Health Org.
v.
Currier
,
We granted certiorari,
II
We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion. Skipping over that question, the controlling opinion in Casey reaffirmed ’s “central holding” based solely on the doctrine of stare decisis , but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based. See infra, at 45–56.
We therefore turn to the question that the plurality did not consider, and we address that question in three steps. First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to “liberty” protects a particular right. Second, *17 9 we examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as “ordered liberty.” Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is sup- ported by other precedents.
A
Constitutional analysis must begin with “the language of the instrument,” Gibbons v. Ogden , 9 Wheat. 1, 186–189 (1824), which offers a “fixed standard” for ascertaining what our founding document means, 1 J. Story, Commen- taries on the Constitution of the United States §399, p. 383 (1833). The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.
Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. See 410 U. S., at 152–153. And that privacy right, observed, had been found to spring from no fewer than five different constitu- tional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Id. , at 152.
The Court’s discussion left open at least three ways in
which some combination of these provisions could protect
the abortion right. One possibility was that the right was
“founded . . . in the Ninth Amendment’s reservation of
rights to the people.”
Id.,
at 153. Another was that the
right was rooted in the First, Fourth, or Fifth Amendment,
or in some combination of those provisions, and that this
right had been “incorporated” into the Due Process Clause
of the Fourteenth Amendment just as many other Bill of
Rights provisions had by then been incorporated.
Ibid
; see
*18
v.
also
McDonald
v.
Chicago
, 561 U. S. 742, 763–766 (2010)
(majority opinion) (discussing incorporation). And a third
path was that the First, Fourth, and Fifth Amendments
played no role and that the right was simply a component
of the “liberty” protected by the Fourteenth Amendment’s
Due Process Clause.
Roe
,
We discuss this theory in depth below, but before doing so, we briefly address one additional constitutional provi- sion that some of respondents’ amici have now offered as yet another potential home for the abortion right: the Four- teenth Amendment’s Equal Protection Clause. See Brief for United States as Amicus Curiae 24 (Brief for United States); see also Brief for Equal Protection Constitutional Law Scholars as Amici Curiae. Neither 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. [17] The regulation of a medical procedure that
[16] The Court’s words were as follows: “This right of privacy, whether it
be founded in the Fourteenth Amendment’s concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment’s reservation of rights to the peo-
ple, is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.”
op., at 8). *19 11 only one sex can undergo does not trigger heightened con- stitutional scrutiny unless the regulation is a “mere pre- tex[t] designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello , 417 U. S. 484, 496, n. 20 (1974). And as the Court has stated, the “goal of preventing abortion” does not constitute “invid- iously discriminatory animus” against women. Bray v. Al- exandria Women’s Health Clinic , 506 U. S. 263, 273–274 (1993) (internal quotation marks omitted). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures. [18]
With this new theory addressed, we turn to ’s bold
assertion that the abortion right is an aspect of the “liberty”
protected by the Due Process Clause of the Fourteenth
Amendment.
The underlying theory on which this argument rests— that the Fourteenth Amendment’s Due Process Clause pro- vides substantive, as well as procedural, protection for “lib- erty”—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights.
The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government, Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243, 247–251 (1833) (opinion for the Court by Marshall, C. J.), but this Court has held that the Due Process Clause of the Fourteenth Amendment “incor- porates” the great majority of those rights and thus makes them equally applicable to the States. See McDonald , 561 We discuss this standard in Part VI of this opinion. *20 v. U. S., at 763–767, and nn. 12–13. The second category— which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
In deciding whether a right falls into either of these cat-
egories, the Court has long asked whether the right is
“deeply rooted in [our] history and tradition” and whether
it is essential to our Nation’s “scheme of ordered liberty.”
Timbs
v.
Indiana
,
Justice Ginsburg’s opinion for the Court in
Timbs
is a re-
cent example. In concluding that the Eighth Amendment’s
protection against excessive fines is “fundamental to our
scheme of ordered liberty” and “deeply rooted in this Na-
tion’s history and tradition,”
A similar inquiry was undertaken in
McDonald
, which
held that the Fourteenth Amendment protects the right to
keep and bear arms. The lead opinion surveyed the origins
of the Second Amendment, the debates in Congress about
See also,
e.g., Duncan
v.
Louisiana
,
the adoption of the Fourteenth Amendment, the state con-
stitutions in effect when that Amendment was ratified (at
least 22 of the 37 States protected the right to keep and bear
arms), federal laws enacted during the same period, and
other relevant historical evidence.
Timbs
and
McDonald
concerned the question whether
the Fourteenth Amendment protects rights that are ex-
pressly set out in the Bill of Rights, and it would be anom-
alous if similar historical support were not required when a
putative right is not mentioned anywhere in the Constitu-
tion. Thus, in
Glucksberg
, which held that the Due Process
Clause does not confer a right to assisted suicide, the Court
surveyed more than 700 years of “Anglo-American common
law tradition,”
Historical inquiries of this nature are essential when- ever we are asked to recognize a new component of the “lib- erty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capa- cious term. As Lincoln once said: “We all declare for Lib- erty; but in using the same word we do not all mean the same thing.” [20] In a well-known essay, Isaiah Berlin re- ported that “[h]istorians of ideas” had cataloged more than Address at Sanitary Fair at Baltimore, Md. (Apr. 18, 1864), reprinted in 7 The Collected Works of Abraham Lincoln 301 (R. Basler ed. 1953). *22 v. 200 different senses in which the term had been used.
In interpreting what is meant by the Fourteenth Amend-
ment’s reference to “liberty,” we must guard against the
natural human tendency to confuse what that Amendment
protects with our own ardent views about the liberty that
Americans should enjoy. That is why the Court has long
been “reluctant” to recognize rights that are not mentioned
in the Constitution.
Collins
v.
Harker Heights
, 503 U. S.
115, 125 (1992). “Substantive due process has at times been
a treacherous field for this Court,”
Moore
v.
East Cleveland
,
431 U. S. 494, 503 (1977) (plurality opinion), and it has
sometimes led the Court to usurp authority that the Con-
stitution entrusts to the people’s elected representatives.
See
Regents of Univ. of Mich. Ewing
,
On occasion, when the Court has ignored the “[a]ppropri-
ate limits” imposed by “ ‘respect for the teachings of his-
tory,’ ”
Moore,
431 U. S., at 503 (plurality opinion), it has
fallen into the freewheeling judicial policymaking that
characterized discredited decisions such as
Lochner
v.
New
York
,
B 1 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 recog- nized 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 advocat- ing new rights, the earliest article proposing a constitu- tional right to abortion that has come to our attention was published only a few years before .
[22] That is true regardless of whether we look to the Amendment’s Due
Process Clause or its Privileges or Immunities Clause. Some scholars
and Justices have maintained that the Privileges or Immunities Clause
is the provision of the Fourteenth Amendment that guarantees substan-
tive rights. See,
e.g., McDonald
v.
Chicago
, 561 U. S. 742, 813–850
(2010) (T HOMAS , J., concurring in part and concurring in judgment);
Dun-
can
,
ment and Administration of State Abortion Statutes, 46 N. C. L. Rev. 730 (1968) (Lucas); see also D. Garrow, Liberty and Sexuality 334–335 (1994) (Garrow) (stating that Lucas was “undeniably the first person to fully
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 re- garded as unlawful and could have very serious conse- quences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s ex- panded 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 preg- nancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey declined to reconsider ’s faulty historical analysis. It is therefore important to set the record straight.
2 a We begin with the common law, under which abortion was a crime at least after “quickening”— i.e. , the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy. articulate on paper” the argument that “a woman’s right to choose abor- tion was a fundamental individual freedom protected by the U. S. Con- stitution’s guarantee of personal liberty”). The exact meaning of “quickening” is subject to some debate. Com-
pare Brief for Scholars of Jurisprudence as Amici Curiae 12–14, and n. 32 (emphasis deleted) (“ ‘a quick child’ ” meant simply a “live” child, and under the era’s outdated knowledge of embryology, a fetus was thought to become “quick” at around the sixth week of pregnancy), with Brief for American Historical Association et al. as Amici Curiae 6, n. 2 (“quick” and “quickening” consistently meant “the woman’s perception of fetal movement”). We need not wade into this debate. First, it suffices for present purposes to show that abortion was criminal by at least the 16th or 18th week of pregnancy. Second, as we will show, during the relevant period— i.e., the period surrounding the enactment of the Four- teenth Amendment—the quickening distinction was abandoned as States criminalized abortion at all stages of pregnancy. See infra , at 21– *25 17
The “eminent common-law authorities (Blackstone,
Coke, Hale, and the like),”
Kahler Kansas
,
Sir Edward Coke’s 17th-century treatise likewise as- serted that abortion of a quick child was “murder” if the “childe be born alive” and a “great misprision” if the “childe dieth in her body.” 3 Institutes of the Laws of England 50– 51 (1644). (“Misprision” referred to “some heynous offence under the degree of felony.” Id ., at 139.) Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a “great crime” and a “great misprision.” Pleas of the Crown 53 (P. Glazebrook ed. 1972); 1 History of the Pleas of the Crown 433 (1736) (Hale). And writing near the time of the adoption of our Constitu- tion, William Blackstone explained that abortion of a “quick” child was “by the ancient law homicide or man- slaughter” (citing Bracton), and at least a very “heinous misdemeanor” (citing Coke). 1 Commentaries on the Laws of England 129–130 (7th ed. 1775) (Blackstone).
English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime. See generally J. Dellapenna, Dispelling the Myths 25. Even before Bracton’s time, English law imposed punishment for the
killing of a fetus. See Leges Henrici Primi 222–223 (L. Downer ed. 1972) (imposing penalty for any abortion and treating a woman who aborted a “quick” child “as if she were a murderess”).
of Abortion History 126, and n. 16, 134–142, 188–194, and nn. 84–86 (2006) (Dellapenna); J. Keown, Abortion, Doctors and the Law 3–12 (1988) (Keown). In 1732, for example, Eleanor Beare was convicted of “destroying the Foetus in the Womb” of another woman and “thereby causing her to miscarry.” [26] For that crime and another “misdemeanor,” Beare was sentenced to two days in the pillory and three years’ imprisonment.
Although a pre-quickening abortion was not itself consid-
ered homicide, it does not follow that abortion was
permis-
sible
at common law—much less that abortion was a legal
right
. Cf.
Glucksberg
,
That the common law did not condone even pre- quickening abortions is confirmed by what one might call a proto-felony-murder rule. Hale and Blackstone explained a way in which a pre-quickening abortion could rise to the level of a homicide. Hale wrote that if a physician gave a woman “with child ” a “potion” to cause an abortion, and the woman died, it was “murder” because the potion was given “ unlawfully to destroy her child within her.” 1 Hale 429– 430 (emphasis added). As Blackstone explained, to be
[26] 2 Gentleman’s Magazine 931 (Aug. 1732).
[27] Id ., at 932. Ibid. *27 19 “murder” a killing had to be done with “malice afore- thought, . . . either express or implied.” 4 Blackstone 198 (emphasis deleted). In the case of an abortionist, Black- stone wrote, “the law will imply [malice]” for the same rea- son that it would imply malice if a person who intended to kill one person accidentally killed a different person:
“[I]f one shoots at A and misses him , but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also , if one gives a woman with child a medicine to procure abor- tion, and it operates so violently as to kill the woman, this is murder in the person who gave it.” Id. , at 200– 201 (emphasis added; footnote omitted).
Notably, Blackstone, like Hale, did not state that this proto-felony-murder rule required that the woman be “with quick child”—only that she be “with child.” Id ., at 201. And it is revealing that Hale and Blackstone treated abortion- ists differently from other physicians or surgeons who caused the death of a patient “without any intent of doing [the patient] any bodily hurt.” Hale 429; see 4 Blackstone 197. These other physicians—even if “unlicensed”—would not be “guilty of murder or manslaughter.” Hale 429. But a physician performing an abortion would, precisely be- cause his aim was an “unlawful” one.
In sum, although common-law authorities differed on the severity of punishment for abortions committed at different Other treatises restated the same rule. See 1 W. Russell & C. Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a per- son gave medicine to a woman to procure an abortion, and where a per- son put skewers into the woman for the same purpose, by which in both cases the women were killed, these acts were clearly held to be murder” (footnotes omitted)); 1 E. East, Pleas of the Crown 230 (1803) (similar). *28 points in pregnancy, none endorsed the practice. Moreover, we are aware of no common-law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of preg- nancy.
b
In this country, the historical record is similar. The “most important early American edition of Blackstone’s Commen- taries,” District of Columbia v. Heller , 554 U. S. 570, 594 (2008), reported Blackstone’s statement that abortion of a quick child was at least “a heinous misdemeanor,” 2 St. George Tucker, Blackstone’s Commentaries 129–130 (1803), and that edition also included Blackstone’s discus- sion of the proto-felony-murder rule, 5 id ., at 200–201. Manuals for justices of the peace printed in the Colonies in the 18th century typically restated the common-law rule on abortion, and some manuals repeated Hale’s and Black- stone’s statements that anyone who prescribed medication “unlawfully to destroy the child” would be guilty of murder if the woman died. See, e.g. , J. Parker, Conductor Generalis 220 (1788); 2 R. Burn, Justice of the Peace, and Parish Of- ficer 221–222 (7th ed. 1762) (English manual stating the same). For manuals restating one or both rules, see J. Davis, Criminal Law
96, 102–103, 339 (1838); Conductor Generalis 194–195 (1801) (printed in Philadelphia); Conductor Generalis 194–195 (1794) (printed in Albany); Conductor Generalis 220 (1788) (printed in New York); Conductor Gen- eralis 198 (1749) (printed in New York); G. Webb, Office and Authority of a Justice of Peace 232 (1736) (printed in Williamsburg); Conductor Generalis 161 (1722) (printed in Philadelphia); see also J. Conley, Doing It by the Book: Justice of the Peace Manuals and English Law in Eight- eenth Century America, 6 J. Legal Hist. 257, 265, 267 (1985) (noting that these manuals were the justices’ “primary source of legal reference” and of “practical value for a wider audience than the justices”).
For cases stating the proto-felony-murder rule, see,
e.g.
,
Common-
wealth
v.
Parker
,
The few cases available from the early colonial period cor-
roborate that abortion was a crime. See generally Del-
lapenna 215–228 (collecting cases). In Maryland in 1652,
for example, an indictment charged that a man “Mur-
therously endeavoured to destroy or Murther the Child by
him begotten in the Womb.”
Proprietary
v.
Mitchell
, 10 Md.
Archives 80, 183 (1652) (W. Browne ed. 1891). And by the
19th century, courts frequently explained that the common
law made abortion of a quick child a crime. See,
e.g
.,
Smith
v.
Gaffard
,
c
The original ground for drawing a distinction between pre- and post-quickening abortions is not entirely clear, but some have attributed the rule to the difficulty of proving that a pre-quickening fetus was alive. At that time, there were no scientific methods for detecting pregnancy in its early stages, [31] and thus, as one court put it in 1872: “[U]ntil the period of quickening there is no evidence of life; and whatever may be said of the feotus, the law has fixed upon this period of gestation as the time when the child is en- dowed with life” because “foetal movements are the first clearly marked and well defined evidences of life .” Evans v. People , 49 N. Y. 86, 90 (emphasis added); Cooper , 22 N. J. L., at 56 (“In contemplation of law life commences at the moment of quickening, at that moment when the em- bryo gives the first physical proof of life , no matter when it first received it” (emphasis added)).
594, 595–596,
stances, the diagnosis of pregnancy must ever be difficult and obscure during the early months”); see also id., at 74–80 (discussing rudimentary techniques for detecting early pregnancy); A. Taylor, A Manual of Medi- cal Jurisprudence 418–421 (6th Am. ed. 1866) (same).
The Solicitor General offers a different explanation of the
basis for the quickening rule, namely, that before quicken-
ing the common law did not regard a fetus “as having a ‘sep-
arate and independent existence.’ ” Brief for United States
26 (quoting
Parker
, 50 Mass., at 266). But the case on
which the Solicitor General relies for this proposition also
suggested that the criminal law’s quickening rule was out
of step with the treatment of prenatal life in other areas of
law, noting that “to many purposes, in reference to civil
rights, an infant
in ventre sa mere
is regarded as a person
in being.”
Ibid
. (citing 1 Blackstone 129); see also
Evans,
49 N. Y., at 89;
Mills
v.
Commonwealth
, 13 Pa. 631, 633
(1850);
Morrow
v.
Scott
,
At any rate, the original ground for the quickening rule
is of little importance for present purposes because the rule
was abandoned in the 19th century. During that period,
treatise writers and commentators criticized the quicken-
ing distinction as “neither in accordance with the result of
medical experience, nor with the principles of the common
law.” F. Wharton, Criminal Law §1220, p. 606 (rev. 4th ed.
1857) (footnotes omitted); see also J. Beck, Researches in
Medicine and Medical Jurisprudence 26–28 (2d ed. 1835)
(describing the quickening distinction as “absurd” and “in-
jurious”).
[32]
In 1803, the British Parliament made abortion
See
Mitchell
v.
Commonwealth
, 78 Ky. 204, 209–210 (1879) (ac-
knowledging the common-law rule but arguing that “the law should pun-
ish abortions and miscarriages, willfully produced, at any time during
the period of gestation”);
Mills
v.
Commonwealth
,
In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. See Appendix A, infra (listing state statutory provisions in chronological order). [33] By 1868, the year when the Fourteenth Amendment was ratified, three- quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. [34] See ibid. Of the nine States that had not yet of the Maine Medical Association 37–39 (1866); Report on Criminal Abor- tion, in 12 Transactions of the American Medical Association 75–77 (1859); W. Guy, Principles of Medical Forensics 133–134 (1845); J. Chitty, Practical Treatise on Medical Jurisprudence 438 (2d Am. ed. 1836); 1 T. Beck & J. Beck, Elements of Medical Jurisprudence 293 (5th ed. 1823); 2 T. Percival, The Works, Literary, Moral and Medical 430 (1807); see also Keown 38–39 (collecting English authorities).
[33] See generally Dellapenna 315–319 (cataloging the development of the law in the States); E. Quay, Justifiable Abortion—Medical and Legal Foundations, 49 Geo. L. J. 395, 435–437, 447–520 (1961) (Quay) (same); J. Witherspoon, Reexamining : Nineteenth-Century Abortion Stat- utes and The Fourteenth Amendment, 17 St. Mary’s L. J. 29, 34–36 (1985) (Witherspoon) (same). Some scholars assert that only 27 States prohibited abortion at all
stages. See, e.g. , Dellapenna 315; Witherspoon 34–35, and n. 15. Those scholars appear to have overlooked Rhode Island, which criminalized abortion at all stages in 1861. See Acts and Resolves R. I. 1861, ch. 371, §1, p. 133 (criminalizing the attempt to “procure the miscarriage” of “any pregnant woman” or “any woman supposed by such person to be preg- nant,” without mention of quickening). The amicus brief for the Ameri- can Historical Association asserts that only 26 States prohibited abortion at all stages, but that brief incorrectly excludes West Virginia and Ne- braska from its count. Compare Brief for American Historical Associa- tion 27–28 (citing Quay), with Appendix A, infra .
criminalized abortion at all stages, all but one did so by 1910. See ibid.
The trend in the Territories that would become the last
13 States was similar: All of them criminalized abortion at
all stages of pregnancy between 1850 (the Kingdom of Ha-
waii) and 1919 (New Mexico). See Appendix B,
infra
; see
also ,
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.
See
id.
, at 118, and n. 2 (listing States). 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.
Id
., at 140, and n. 37; Tribe 2. In short, the
The statutes of three States (Massachusetts, New Jersey, and Penn-
sylvania) prohibited abortions performed “unlawfully” or “without lawful
justification.”
Roe
,
Statutes in the two remaining jurisdictions (the District of Columbia and Alabama) permitted “abortion to preserve the mother’s health.” , 410 U. S., at 139. Case law in those jurisdictions does not clarify the breadth of these exceptions. *33 25
“Court’s opinion in
Roe
itself convincingly refutes the notion
that the abortion liberty is deeply rooted in the history or
tradition of our people.”
Thornburgh American College of
Obstetricians and Gynecologists
,
d
The inescapable conclusion is that a right to abortion is
not deeply rooted in the Nation’s history and traditions. On
the contrary, an unbroken tradition of prohibiting abortion
on pain of criminal punishment persisted from the earliest
days of the common law until 1973. The Court in
Roe
could
have said of abortion exactly what
Glucksberg
said of as-
sisted suicide: “Attitudes toward [abortion] have changed
since Bracton, but our laws have consistently condemned,
and continue to prohibit, [that practice].”
Respondents and their amici have no persuasive answer to this historical evidence.
Neither respondents nor the Solicitor General disputes the fact that by 1868 the vast majority of States criminal- ized abortion at all stages of pregnancy. See Brief for Peti- tioners 12–13; see also Brief for American Historical Asso- ciation et al. as Amici Curiae 27–28, and nn. 14–15 (conceding that 26 out of 37 States prohibited abortion be- fore quickening); Tr. of Oral Arg. 74–75 (respondents’ coun- sel conceding the same). Instead, respondents are forced to argue that it “does [not] matter that some States prohibited abortion at the time was decided or when the Four- teenth Amendment was adopted.” Brief for Respondents 21. But that argument flies in the face of the standard we have applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment.
Not only are respondents and their amici unable to show *34 that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century—no state con- stitutional provision, no statute, no judicial decision, no learned treatise. The earliest sources called to our atten- tion are a few district court and state court decisions de- cided shortly before Roe and a small number of law review articles from the same time period.
A few of respondents’
amici
muster historical arguments,
but they are very weak. The Solicitor General repeats
Roe
’s
claim that it is “ ‘doubtful’ . . . ‘abortion was ever firmly es-
tablished as a common-law crime even with respect to the
destruction of a quick fetus.’ ” Brief for United States 26
(quoting
Roe
,
Instead of following these authorities, relied largely on two articles by a pro-abortion advocate who claimed that Coke had intentionally misstated the common law because of his strong anti-abortion views. [37] These articles have
[36] See
n. 21 (citing Means I). *35 27 been discredited, [38] and it has come to light that even mem- bers of Jane Roe’s legal team did not regard them as serious scholarship. An internal memorandum characterized this author’s work as donning “the guise of impartial scholar- ship while advancing the proper ideological goals.” [39] Con- tinued reliance on such scholarship is unsupportable.
The Solicitor General next suggests that history supports
an abortion right because the common law’s failure to crim-
inalize abortion before quickening means that “at the
Founding and for decades thereafter, women generally
could terminate a pregnancy, at least in its early stages.” Brief for United States 26–27; see also Brief for Respond-
ents 21. But the insistence on quickening was not univer-
sal, see
Mills
,
[38] For critiques of Means’s work, see, e.g. , Dellapenna 143–152, 325– 331; Keown 3–12; J. Finnis, “Shameless Acts” in Colorado: Abuse of Scholarship in Constitutional Cases, 7 Academic Questions 10, 11–12 (1994); R. Destro, Abortion and the Constitution: The Need for a Life- Protective Amendment, 63 Cal. L. Rev. 1250, 1267–1282 (1975); R. Byrn, An American Tragedy: The Supreme Court on Abortion, 41 Ford. L. Rev. 807, 814–829 (1973).
[39] Garrow 500–501, and n. 41 (internal quotation marks omitted).
In any event, ,
Casey
, and other related abortion decisions im-
posed substantial restrictions on a State’s capacity to regulate abortions
performed after quickening. See,
e.g.
,
June Medical Services L. L. C.
v.
Russo
,
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. When legislatures began to exercise that authority as the century wore on, no one, as far as we are aware, argued that the laws they en- acted violated a fundamental right. That is not surprising since common-law authorities had repeatedly condemned abortion and described it as an “unlawful” act without re- gard to whether it occurred before or after quickening. See supra , at 16–21.
Another amicus brief relied upon by respondents (see Brief for Respondents 21) tries to dismiss the significance of the state criminal statutes that were in effect when the Fourteenth Amendment was adopted by suggesting that they were enacted for illegitimate reasons. According to this account, which is based almost entirely on statements made by one prominent proponent of the statutes, im- portant motives for the laws were the fear that Catholic im- migrants were having more babies than Protestants and that the availability of abortion was leading White Protestant women to “shir[k their] maternal duties.” Brief for American Historical Association et al. as Amici Curiae 20.
Resort to this argument is a testament to the lack of any
real historical support for the right that and rec-
ognized. This Court has long disfavored arguments based
on alleged legislative motives. See,
e.g
.,
Erie
v.
Pap’s A. M.
,
Here, the argument about legislative motive is not even based on statements by legislators, but on statements made by a few supporters of the new 19th-century abortion laws, and it is quite a leap to attribute these motives to all the legislators whose votes were responsible for the enactment of those laws. Recall that at the time of the adoption of the Fourteenth Amendment, over three-quarters of the States had adopted statutes criminalizing abortion (usually at all stages of pregnancy), and that from the early 20th century until the day was handed down, every single State had such a law on its books. Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?
There is ample evidence that the passage of these laws
was instead spurred by a sincere belief that abortion kills a
human being. Many judicial decisions from the late 19th
and early 20th centuries made that point. See,
e.g.
,
Nash
v.
Meyer
,
One may disagree with this belief (and our decision is not based on any view about when a State should regard pre- natal life as having rights or legally cognizable interests), *38 but even Roe and Casey did not question the good faith of abortion opponents. See, e.g., Casey , 505 U. S., at 850 (“Men and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminat- ing a pregnancy even in its earliest stage”). And we see no reason to discount the significance of the state laws in ques- tion based on these amici ’s suggestions about legislative motive. [41]
C
Instead of seriously pressing the argument that the abor-
tion 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 pri-
vacy,
The Court did not claim that this broadly framed right is
absolute, and no such claim would be plausible. While in-
dividuals are certainly free
to think
and
to say
what they
Other
amicus
briefs present arguments about the motives of propo-
nents of liberal access to abortion. They note that some such supporters
have been motivated by a desire to suppress the size of the African-
American population. See Brief for African-American Organization et al.
as
Amici Curiae
14–21; see also
Box
v.
Planned Parenthood of Ind. and
Ky., Inc.
,
wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many under- standings of “liberty,” but it is certainly not “ordered lib- erty.”
Ordered liberty sets limits and defines the boundary be-
tween competing interests.
Roe
and
Casey
each struck a
particular balance between the interests of a woman who
wants an abortion and the interests of what they termed
“potential life.” ,
Nor does the right to obtain an abortion have a sound ba-
sis in precedent.
Casey
relied on cases involving the right
to marry a person of a different race,
Loving
v.
Virginia
, 388
U. S. 1 (1967); the right to marry while in prison,
Turner
v.
Safley
, 482 U. S. 78 (1987); the right to obtain contracep-
tives,
Griswold
v.
Connecticut
,
These attempts to justify abortion through appeals to a
broader right to autonomy and to define one’s “concept of
existence” prove too much.
Casey
,
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: Abor-
tion destroys what those decisions call “potential life” and
what the law at issue in this case regards as the life of an
“unborn human being.” See ,
In drawing this critical distinction between the abortion
right and other rights, it is not necessary to dispute ’s
claim (which we accept for the sake of argument) that “the
*41
33
specific practices of States at the time of the adoption of the
Fourteenth Amendment” do not “mar[k] the outer limits of
the substantive sphere of liberty which the Fourteenth
Amendment protects.”
Defenders of and Casey do not claim that any new scientific learning calls for a different answer to the under- lying moral question, but they do contend that changes in society require the recognition of a constitutional right to obtain an abortion. Without the availability of abortion, they maintain, people will be inhibited from exercising their freedom to choose the types of relationships they de- sire, and women will be unable to compete with men in the workplace and in other endeavors.
Americans who believe that abortion should be restricted press countervailing arguments about modern develop- ments. They note that attitudes about the pregnancy of un- married women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy; that leave for pregnancy and childbirth are now guaranteed by law in many cases; [43] that the costs of medical care asso-
[42] See, e.g ., Pregnancy Discrimination Act, 92 Stat. 2076, 42 U. S. C. §2000e(k) (federal law prohibiting pregnancy discrimination in employ- ment); Dept. of Labor, Women’s Bureau, Employment Protections for Workers Who Are Pregnant or Nursing, https://www.dol.gov/agencies/ wb/pregnant-nursing-employment-protections (showing that 46 States and the District of Columbia have employment protections against preg- nancy discrimination). See, e.g. , Family and Medical Leave Act of 1993, 107 Stat. 9, 29
U. S. C. §2612 (federal law guaranteeing employment leave for preg- nancy and birth); Bureau of Labor Statistics, Access to Paid and Unpaid Family Leave in 2018, https://www.bls.gov/opub/ted/2019/access-to-paid- *42 ciated with pregnancy are covered by insurance or govern- ment assistance; [44] that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; [45] and that a woman who puts her new- born up for adoption today has little reason to fear that the baby will not find a suitable home. [46] They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son. and-unpaid-family-leave-in-2018.htm (showing that 89 percent of civil- ian workers had access to unpaid family leave in 2018).
[44] The Affordable Care Act (ACA) requires non-grandfathered health plans in the individual and small group markets to cover certain essen- tial health benefits, which include maternity and newborn care. See 124 Stat. 163, 42 U. S. C. §18022(b)(1)(D). The ACA also prohibits annual limits, see §300gg–11, and limits annual cost-sharing obligations on such benefits, §18022(c). State Medicaid plans must provide coverage for pregnancy-related services—including, but not limited to, prenatal care, delivery, and postpartum care—as well as services for other conditions that might complicate the pregnancy. 42 CFR §§440.210(a)(2)(i)–(ii) (2020). State Medicaid plans are also prohibited from imposing deduc- tions, cost-sharing, or similar charges for pregnancy-related services for pregnant women. 42 U. S. C. §§1396o(a)(2)(B), (b)(2)(B).
[45] Since , all 50 States and the District of Columbia have enacted such laws. Dept. of Health and Human Servs., Children’s Bureau, Infant Safe Haven Laws 1–2 (2016), https://www.childwelfare.gov/pubPDFs/ safehaven.pdf (noting that safe haven laws began in Texas in 1999). See, e.g. , CDC, Adoption Experiences of Women and Men and De- mand for Children To Adopt by Women 18–44 Years of Age in the United States 16 (Aug. 2008) (“[N]early 1 million women were seeking to adopt children in 2002 ( i.e ., they were in demand for a child), whereas the do- mestic supply of infants relinquished at birth or within the first month of life and available to be adopted had become virtually nonexistent”); CDC, National Center for Health Statistics, Adoption and Nonbiological Parenting, https://www.cdc.gov/nchs/nsfg/key_statistics/a-keystat.htm# adoption (showing that approximately 3.1 million women between the ages of 18–49 had ever “[t]aken steps to adopt a child” based on data collected from 2015–2019). *43 35
Both sides make important policy arguments, but sup- porters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abor- tion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected represent- atives.
D
1
The dissent is very candid that it cannot show that a con-
stitutional right to abortion has any foundation, let alone a
“ ‘deeply rooted’ ” one, “ ‘in this Nation’s history and tradi-
tion.’ ”
Glucksberg
, 521 U. S., at 721; see
post
, at 12–14
(joint opinion of B REYER , S OTOMAYOR , and K AGAN , JJ.).
The dissent does not identify
any
pre-
Roe
authority that
supports such a right—no state constitutional provision or
statute, no federal or state judicial precedent, not even a
scholarly treatise. Compare
post
, at 12–14, n. 2, with
su-
pra,
at 15–16, and n. 23. Nor does the dissent dispute the
fact that abortion was illegal at common law at least after
quickening; that the 19th century saw a trend toward crim-
inalization of pre-quickening abortions; that by 1868, a su-
permajority of States (at least 26 of 37) had enacted stat-
utes criminalizing abortion at all stages of pregnancy; that
by the late 1950s at least 46 States prohibited abortion
“however and whenever performed” except if necessary to
save “the life of the mother,” ,
The dissent’s failure to engage with this long tradition is
By way of contrast, at the time
Griswold Connecticut
, 381 U. S.
479 (1965), was decided, the Connecticut statute at issue was an extreme
outlier. See Brief for Planned Parenthood Federation of America, Inc. as
Amicus Curiae
in
Griswold
v.
Connecticut
, O. T. 1964, No. 496, p. 27.
*44
devastating to its position. We have held that the “estab-
lished method of substantive-due-process analysis” re-
quires that an unenumerated right be “ ‘deeply rooted in
this Nation’s history and tradition’ ” before it can be recog-
nized as a component of the “liberty” protected in the Due
Process Clause.
Glucksberg
, 521 U. S., at 721; cf.
Timbs
,
The dissent attempts to obscure this failure by misrepre- senting our application of Glucksberg. The dissent suggests that we have focused only on “the legal status of abortion in the 19th century,” post, at 26, but our review of this Na- tion’s tradition extends well past that period. As explained, for more than a century after 1868—including “another half-century” after women gained the constitutional right to vote in 1920, see post , at 15; Amdt. 19—it was firmly es- tablished that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regula- tory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.
Because the dissent cannot argue that the abortion right is rooted in this Nation’s history and tradition, it contends that the “constitutional tradition” is “not captured whole at a single moment,” and that its “meaning gains content from the long sweep of our history and from successive judicial precedents.” Post , at 18 (internal quotation marks omit- ted). This vague formulation imposes no clear restraints on what Justice White called the “exercise of raw judicial power,” , 410 U. S., at 222 (dissenting opinion), and while the dissent claims that its standard “does not mean *45 37 anything goes,” post , at 17, any real restraints are hard to discern.
The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here. First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the prec- edents Roe cited, including Griswold and Eisenstadt , were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.” See supra , at 32.
So without support in history or relevant precedent, Roe ’s reasoning cannot be defended even under the dissent’s pro- posed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted ’s interpretation. Un- der the doctrine of stare decisis , those precedents are enti- tled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not “ ‘an inexora- ble command.’ ” Kimble v. Marvel Entertainment, LLC , 576 U. S. 446, 455 (2015). There are occasions when past deci- sions should be overruled, and as we will explain, this is one of them.
The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ inter- est in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex) , and Obergefell (same-sex marriage). Perhaps this is *46 designed to stoke unfounded fear that our decision will im- peril those other rights, but the dissent’s analogy is objec- tionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “po- tential life.” The exercise of the rights at issue in Griswold , Eisenstadt , Lawrence , and Obergefell does not destroy a “po- tential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and , the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any signifi- cance.
That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life. The dissent repeatedly praises the “balance,” post , at 2, 6, 8, 10, 12, that the viability line strikes between a woman’s liberty interest and the State’s interest in prenatal life. But for reasons we discuss later, see infra, at 50–54, 55–56, and given in the opinion of T HE C HIEF J USTICE , post, at 2–5 (opinion concurring in judg- ment), the viability line makes no sense. It was not ade- quately justified in , and the dissent does not even try to defend it today. Nor does it identify any other point in a pregnancy after which a State is permitted to prohibit the destruction of a fetus.
Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in *47 our Nation’s legal traditions authorizes the Court to adopt that “ ‘theory of life.’ ” Post , at 8.
III
We next consider whether the doctrine of
stare decisis
counsels continued acceptance of and
Casey
.
Stare de-
cisis
plays an important role in our case law, and we have
explained that it serves many valuable ends. It protects the
interests of those who have taken action in reliance on a
past decision. See ,
We have long recognized, however, that
stare decisis
is
“not an inexorable command,”
Pearson
v.
Callahan
, 555
U. S. 223, 233 (2009) (internal quotation marks omitted),
and it “is at its weakest when we interpret the Constitu-
tion,”
Agostini
v.
Felton
,
Some of our most important constitutional decisions have
overruled prior precedents. We mention three. In
Brown
v.
Board of Education
,
In
West Coast Hotel Co.
v.
Parrish
,
On many other occasions, this Court has overruled im-
portant constitutional decisions. (We include a partial list
in the footnote that follows.
[48]
) Without these decisions,
See,
e.g.
,
Obergefell
v.
Hodges
,
No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overrul- ing a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have attempted to pro- vide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. Janus v. State, County, and Municipal Employees , 585 U. S. ___, ___–___ (2018) (slip op., at 34–35); Ramos v. Louisiana , 590 U. S. ___, ___–___ (2020) (K AVANAUGH , J., concurring in part) (slip op., at 7–9).
In this case, five factors weigh strongly in favor of over- ruling Roe and : the nature of their error, the quality of their reasoning, the “workability” of the rules they im- posed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.
A
The nature of the Court’s error . An erroneous interpreta- tion of the Constitution is always important, but some are more damaging than others.
The infamous decision in
Plessy Ferguson
, was one
Mapp
v.
Ohio
,
such decision. It betrayed our commitment to “equality be-
fore the law.”
Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe ’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.
Roe
was on a collision course with the Constitution from
the day it was decided,
Casey
perpetuated its errors, and
those errors do not concern some arcane corner of the law
of little importance to the American people. Rather, wield-
ing nothing but “raw judicial power,”
Roe
,
As the Court’s landmark decision in West Coast Hotel il- lustrates, the Court has previously overruled decisions that *53 wrongly removed an issue from the people and the demo- cratic process. As Justice White later explained, “decisions that find in the Constitution principles or values that can- not fairly be read into that document usurp the people’s au- thority, for such decisions represent choices that the people have never made and that they cannot disavow through cor- rective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on re- consideration, are found to be mistaken.” Thornburgh , 476 U. S., at 787 (dissenting opinion).
B
The quality of the reasoning
. Under our precedents, the
quality of the reasoning in a prior case has an important
bearing on whether it should be reconsidered. See
Janus
,
Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its deci- sion in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and pre- sumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamen- tal 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 his- tory of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot pro- tect fetal life prior to “viability”) was never raised by any *54 party and has never been plausibly explained. Roe ’s rea- soning quickly drew scathing scholarly criticism, even from supporters of broad access to abortion.
The Casey plurality, while reaffirming Roe’ s central hold- ing , pointedly refrained from endorsing most of its reason- ing. It revised the textual basis for the abortion right, si- lently abandoned Roe ’s erroneous historical narrative, and jettisoned the trimester framework. But it replaced that scheme with an arbitrary “undue burden” test and relied on an exceptional version of stare decisis that, as explained be- low, this Court had never before applied and has never in- voked since.
a
The weaknesses in ’s reasoning are well-known.
Without any grounding in the constitutional text, history,
or precedent, it imposed on the entire country a detailed set
of rules much like those that one might expect to find in a
statute or regulation. See
This elaborate scheme was the Court’s own brainchild. Neither party advocated the trimester framework; nor did either party or any amicus argue that “viability” should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transformed. See Brief for Appellant and Brief for Appellee in Roe v. Wade , O. T. 1972, No. 70–18; see also C. Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade 127, 141 (2012).
b
Not only did this scheme resemble the work of a legisla- ture, but the Court made little effort to explain how these rules could be deduced from any of the sources on which constitutional decisions are usually based. We have al- ready discussed ’s treatment of constitutional text, and the opinion failed to show that history, precedent, or any other cited source supported its scheme.
Roe featured a lengthy survey of history, but much of its discussion was irrelevant, and the Court made no effort to explain why it was included. For example, multiple para- graphs were devoted to an account of the views and prac- tices of ancient civilizations where infanticide was widely accepted. See 410 U. S., at 130–132 (discussing ancient Greek and Roman practices). [49] When it came to the most important historical fact—how the States regulated abor- tion when the Fourteenth Amendment was adopted—the Court said almost nothing. It allowed that States had tight- ened their abortion laws “in the middle and late 19th cen- tury,” id ., at 139, but it implied that these laws might have See, e.g. , C. Patterson, “Not Worth the Rearing”: The Causes of In- fant Exposure in Ancient Greece, 115 Transactions Am. Philosophical Assn. 103, 111–123 (1985); A. Cameron, The Exposure of Children and Greek Ethics, 46 Classical Rev. 105–108 (1932); H. Bennett, The Expo- sure of Infants in Ancient Rome, 18 Classical J. 341–351 (1923); W. Har- ris, Child-Exposure in the Roman Empire, 84 J. Roman Studies 1 (1994). *56 been enacted not to protect fetal life but to further “a Victo- rian social concern” about “illicit sexual conduct,” id ., at 148.
Roe ’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court er- roneously suggested—contrary to Bracton, Coke, Hale, Blackstone, and a wealth of other authority—that the com- mon law had probably never really treated post-quickening abortion as a crime. See id ., at 136 (“[I]t now appear[s] doubtful that abortion was ever firmly established as a com- mon-law crime even with respect to the destruction of a quick fetus”). This erroneous understanding appears to have played an important part in the Court’s thinking be- cause the opinion cited “the lenity of the common law” as one of the four factors that informed its decision. Id ., at 165.
After surveying history, the opinion spent many para- graphs conducting the sort of fact-finding that might be un- dertaken by a legislative committee. This included a lengthy account of the “position of the American Medical Association” and “[t]he position of the American Public Health Association,” as well as the vote by the American Bar Association’s House of Delegates in February 1972 on proposed abortion legislation. Id ., at 141, 144, 146 (empha- sis deleted). Also noted were a British judicial decision handed down in 1939 and a new British abortion law en- acted in 1967. Id ., at 137–138. The Court did not explain why these sources shed light on the meaning of the Consti- tution, and not one of them adopted or advocated anything like the scheme that imposed on the country.
Finally, after all this, the Court turned to precedent. Cit-
ing a broad array of cases, the Court found support for a
constitutional “right of personal privacy,”
id.,
at 152, but it
conflated two very different meanings of the term: the right
*57
to shield information from disclosure and the right to make
and implement important personal decisions without gov-
ernmental interference. See
Whalen
v.
Roe
,
What remained was a handful of cases having something
to do with marriage,
Loving
,
When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “con- sistent with” the following: (1) “the relative weights of the respective interests involved,” (2) “the lessons and exam- ples of medical and legal history,” (3) “the lenity of the com- mon law,” and (4) “the demands of the profound problems of the present day.” Roe , 410 U. S. , at 165. Put aside the second and third factors, which were based on the Court’s flawed account of history, and what remains are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate com- peting interests. The scheme Roe produced looked like leg- islation, and the Court provided the sort of explanation that might be expected from a legislative body.
c
What did not provide was any cogent justification for
the lines it drew. Why, for example, does a State have no
*58
authority to regulate first trimester abortions for the pur-
pose of protecting a woman’s health? The Court’s only ex-
planation was that mortality rates for abortion at that stage
were lower than the mortality rates for childbirth.
Id.
, at
163. But the Court did not explain why mortality rates
were the only factor that a State could legitimately con-
sider. Many health and safety regulations aim to avoid ad-
verse health consequences short of death. And the Court
did not explain why it departed from the normal rule that
courts defer to the judgments of legislatures “in areas
fraught with medical and scientific uncertainties.”
Mar-
shall
v.
United States
,
An even more glaring deficiency was Roe ’s failure to jus- tify the critical distinction it drew between pre- and post- viability abortions. Here is the Court’s entire explanation:
“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at vi- ability. This is so because the fetus then presumably has the capability of meaningful life outside the womb.”410 U. S., at 163 .
As Professor Laurence Tribe has written, “[c]learly, this
mistakes ‘a definition for a syllogism.’ ” Tribe 4 (quoting Ely
924). The definition of a “viable” fetus is one that is capable
of surviving outside the womb, but why is this the point at
which the State’s interest becomes compelling? If, as
Roe
held, a State’s interest in protecting prenatal life is compel-
ling “after viability,”
This arbitrary line has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. Some have argued that a fetus should not *59 be entitled to legal protection until it acquires the charac- teristics that they regard as defining what it means to be a “person.” Among the characteristics that have been offered as essential attributes of “personhood” are sentience, self- awareness, the ability to reason, or some combination thereof. [50] By this logic, it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical con- ditions, merit protection as “persons.” But even if one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins.
The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the See, e.g. , P. Singer, Rethinking Life & Death 218 (1994) (defining a person as “a being with awareness of her or his own existence over time, and the capacity to have wants and plans for the future”); B. Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses 9–13 (1992) (arguing that “the possession of interests is both necessary and sufficient for moral status” and that the “capacity for conscious awareness is a necessary condition for the possession of interests” (em- phasis deleted)); M. Warren, On the Moral and Legal Status of Abortion, 57 The Monist 1, 5 (1973) (arguing that, to qualify as a person, a being must have at least one of five traits that are “central to the concept of personhood”: (1) “consciousness (of objects and events external and/or in- ternal to the being), and in particular the capacity to feel pain”; (2) “rea- soning (the developed capacity to solve new and relatively complex prob- lems)”; (3) “self-motivated activity (activity which is relatively independent of either genetic or direct external control)”; (4) “the capac- ity to communicate, by whatever means, messages of an indefinite vari- ety of types”; and (5) “the presence of self-concepts, and self-awareness, either individual or racial, or both” (emphasis deleted)); M. Tooley, Abor- tion & Infanticide, 2 Philosophy & Pub. Affairs 37, 49 (Autumn 1972) (arguing that “having a right to life presupposes that one is capable of desiring to continue existing as a subject of experiences and other mental states”).
state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years. In the 19th century, a fetus may not have been viable until the 32d or 33d week of pregnancy or even later. [51] When Roe was de- cided, viability was gauged at roughly 28 weeks. See 410 U. S., at 160. Today, respondents draw the line at 23 or 24 weeks. Brief for Respondents 8. So, according to ’s logic, States now have a compelling interest in protecting a fetus with a gestational age of, say, 26 weeks, but in 1973 States did not have an interest in protecting an identical fetus. How can that be?
Viability also depends on the “quality of the available
medical facilities.”
Colautti
v.
Franklin
,
not enjoyed by an identical fetus in a remote area of a poor country?
In addition, as the Court once explained, viability is not really a hard-and-fast line. Ibid . A physician determining a particular fetus’s odds of surviving outside the womb must consider “a number of variables,” including “gesta- tional age,” “fetal weight,” a woman’s “general health and nutrition,” the “quality of the available medical facilities,” and other factors. Id. , at 395–396. It is thus “only with difficulty” that a physician can estimate the “probability” of a particular fetus’s survival. Id. , at 396. And even if each fetus’s probability of survival could be ascertained with cer- tainty, settling on a “probabilit[y] of survival” that should count as “viability” is another matter. Ibid. Is a fetus via- ble with a 10 percent chance of survival? 25 percent? 50 percent? Can such a judgment be made by a State? And can a State specify a gestational age limit that applies in all cases? Or must these difficult questions be left entirely to the individual “attending physician on the particular facts of the case before him”? Id. , at 388.
The viability line, which termed Roe ’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line. [52] The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the States less freedom to regulate abortion than the majority of western democracies enjoy.
d
All in all, ’s reasoning was exceedingly weak, and ac- ademic commentators, including those who agreed with the According to the Center for Reproductive Rights, only the United States and the Netherlands use viability as a gestational limit on the availability of abortion on-request. See Center for Reproductive Rights, The World’s Abortion Laws (Feb. 23, 2021), https://reproductiverights .org/maps/worlds-abortion-laws.
decision as a matter of policy, were unsparing in their crit- icism. John Hart Ely famously wrote that Roe was “not con- stitutional law and g[ave] almost no sense of an obligation to try to be.” Ely 947 (emphasis deleted). Archibald Cox, who served as Solicitor General under President Kennedy, commented that Roe “read[s] like a set of hospital rules and regulations” that “[n]either historian, layman, nor lawyer will be persuaded . . . are part of . . . the Constitution.” The Role of the Supreme Court in American Government 113– 114 (1976). Laurence Tribe wrote that “even if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, ‘interest-balancing’ of the form the Court pursues fails to justify any of the lines actually drawn.” Tribe 4–5. Mark Tushnet termed Roe a “totally unreasoned judicial opinion.” Red, White, and Blue: A Critical Analysis of Constitutional Law 54 (1988). See also P. Bobbitt, Constitutional Fate 157 (1982); A. Amar, Foreword: The Document and the Doc- trine, 114 Harv. L. Rev. 26, 110 (2000).
Despite ’s weaknesses, its reach was steadily ex-
tended in the years that followed. The Court struck down
laws requiring that second-trimester abortions be per-
formed only in hospitals,
Akron
v.
Akron Center for Repro-
ductive Health, Inc.
,
Justice White complained that the Court was engaging in
“unrestrained imposition of its own extraconstitutional
value preferences.”
Thornburgh
,
When revisited
Roe
almost 20 years later, very lit-
tle of
Roe
’s reasoning was defended or preserved. The Court
abandoned any reliance on a privacy right and instead
grounded the abortion right entirely on the Fourteenth
Amendment’s Due Process Clause.
The Court also made no real effort to remedy one of the
greatest weaknesses in
Roe
’s analysis: its much-criticized
discussion of viability. The Court retained what it called
Roe
’s “central holding”—that a State may not regulate pre-
viability abortions for the purpose of protecting fetal life—
but it provided no principled defense of the viability line.
505 U. S.
,
at 860, 870–871. Instead, it merely rephrased
what had said, stating that viability marked the point
at which “the independent existence of a second life can in
reason and fairness be the object of state protection that
now overrides the rights of the woman.”
The controlling opinion criticized and rejected Roe ’s tri- mester scheme, 505 U. S., at 872, and substituted a new “undue burden” test, but the basis for this test was obscure. And as we will explain, the test is full of ambiguities and is difficult to apply.
Casey , in short, either refused to reaffirm or rejected im- portant aspects of Roe ’s analysis, failed to remedy glaring deficiencies in Roe ’s reasoning, endorsed what it termed Roe ’s central holding while suggesting that a majority might not have thought it was correct, provided no new sup- port for the abortion right other than Roe ’s status as prece- dent, and imposed a new and problematic test with no firm grounding in constitutional text, history, or precedent.
As discussed below, also deployed a novel version of the doctrine of stare decisis . See infra , at 64–69. This new doctrine did not account for the profound wrongness of the decision in , and placed great weight on an intangi- ble form of reliance with little if any basis in prior case law. Stare decisis does not command the preservation of such a decision.
C
Workability
. Our precedents counsel that another im-
portant consideration in deciding whether a precedent
should be overruled is whether the rule it imposes is work-
able—that is, whether it can be understood and applied in
a consistent and predictable manner.
Montejo
v.
Louisiana
,
Problems begin with the very concept of an “undue bur-
den.” As Justice Scalia noted in his
Casey
partial dissent,
determining whether a burden is “due” or “undue” is “inher-
ently standardless.”
The
Casey
plurality tried to put meaning into the “undue
burden” test by setting out three subsidiary rules, but these
rules created their own problems. The first rule is that “a
provision of law is invalid, if its purpose or effect is to place
a
substantial obstacle
in the path of a woman seeking an
abortion before the fetus attains viability.”
This ambiguity is a problem, and the second rule, which
applies at all stages of a pregnancy, muddies things further.
It states that measures designed “to ensure that the
woman’s choice is informed” are constitutional so long as
they do not impose “an undue burden on the right.” ,
The third rule complicates the picture even more. Under
that rule,
“[u]nnecessary health
regulations that have the
purpose or effect of presenting a
substantial obstacle
to a
woman seeking an abortion impose an
undue burden
on the
right.”
Casey
,
In addition to these problems, one more applies to all three rules. They all call on courts to examine a law’s effect on women, but a regulation may have a very different im- pact on different women for a variety of reasons, including their places of residence, financial resources, family situa- tions, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional dis- position and condition, and the firmness of their desire to obtain abortions. In order to determine whether a regula- tion presents a substantial obstacle to women, a court needs to know which set of women it should have in mind and how many of the women in this set must find that an obstacle is “substantial.” provided no clear answer to these questions. It
said that a regulation is unconstitutional if it imposes a
*67
59
substantial obstacle “in a large fraction of cases in which
[it] is relevant,”
The difficulty of applying
Casey
’s new rules surfaced in
that very case. The controlling opinion found that Pennsyl-
vania’s 24-hour waiting period requirement and its
informed-consent provision did not impose “undue bur-
den[s],” ,
The ambiguity of the “undue burden” test also produced
disagreement in later cases. In
Whole Woman’s Health
, the
Court adopted the cost-benefit interpretation of the test,
stating that “[t]he rule announced in
Casey
. . . requires
that courts consider the burdens a law imposes on abortion
access
together with the benefits those laws confer
.” 579
U. S., at 607 (emphasis added). But five years later, a ma-
jority of the Justices rejected that interpretation. See
June
Medical
, 591 U. S. ___. Four Justices reaffirmed
Whole
Woman’s Health
’s instruction to “weigh” a law’s “benefits”
against “the burdens it imposes on abortion access.” 591
U. S., at ___ (plurality opinion) (slip op., at 2) (internal quo-
tation marks omitted). But T HE C HIEF J USTICE —who cast
*68
the deciding vote—argued that “[n]othing about
Casey
sug-
gested that a weighing of costs and benefits of an abortion
regulation was a job for the courts.”
Id.,
at ___ (opinion con-
curring in judgment) (slip op., at 6). And the four Justices
in dissent rejected the plurality’s interpretation of
Casey
.
See
This Court’s experience applying Casey has confirmed Chief Justice Rehnquist’s prescient diagnosis that the undue-burden standard was “not built to last.” Casey , 505 U. S., at 965 (opinion concurring in judgment in part and dissenting in part).
3
The experience of the Courts of Appeals provides further
evidence that ’s “line between” permissible and un-
constitutional restrictions “has proved to be impossible to
draw with precision.”
Janus
,
Casey has generated a long list of Circuit conflicts. Most recently, the Courts of Appeals have disagreed about whether the balancing test from Whole Woman’s Health correctly states the undue-burden framework. [53] They have disagreed on the legality of parental notification rules.
[53] Compare
Whole Woman’s Health
v.
Paxton
,
352, 367 (CA4 1998), with Planned Parenthood of Ind. & Ky., Inc. v. Ad- *69 61 They have disagreed about bans on certain dilation and evacuation procedures. [55] They have disagreed about when an increase in the time needed to reach a clinic constitutes an undue burden. [56] And they have disagreed on whether a State may regulate abortions performed because of the fe- tus’s race, sex, or disability. [57]
The Courts of Appeals have experienced particular diffi- culty in applying the large-fraction-of-relevant-cases test. They have criticized the assignment while reaching unpre- dictable results. [58] And they have candidly outlined ’s many other problems.
ams
, 937 F. 3d 973, 985–990 (CA7 2019), cert. granted, judgment va-
cated,
[55] Compare
Whole Woman’s Health
v.
Paxton
, 10 F. 4th, at 435–436,
with
West Ala. Women’s Center
v.
Williamson
,
[56] Compare
Tucson Woman’s Clinic
v.
Eden
,
[57] Compare Preterm-Cleveland McCloud , 994 F. 3d 512, 520–535 (CA6 2021), with Little Rock Family Planning Servs. v. Rutledge , 984 F. 3d 682, 688–690 (CA8 2021).
[58] See,
e.g., Bristol Regional Women’s Center, P.C.
v.
Slatery
, 7 F. 4th
478, 485 (CA6 2021);
Reproductive Health Servs.
v.
Strange
, 3 F. 4th
1240, 1269 (CA11 2021) (
per curiam
);
June Medical Servs., L.L.C.
v.
Gee
,
F. 4th 409, 451 (CA6 2021) (Thapar, J., concurring in judgment in part
and dissenting in part);
Preterm-Cleveland
,
D
Effect on other areas of law
.
Roe
and
Casey
have led to
the distortion of many important but unrelated legal doc-
trines, and that effect provides further support for overrul-
ing those decisions. See
Ramos
,
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.”
Thornburgh
, 476
U. S., at 814 (O’Connor, J., dissenting); see
Madsen
v.
Women’s Health Center, Inc.
, 512 U. S. 753, 785 (1994)
(Scalia, J., concurring in judgment in part and dissenting
Health
,
The Court’s abortion cases have diluted the strict stand- ard for facial constitutional challenges. [60] They have ig- nored the Court’s third-party standing doctrine. [61] They have disregarded standard res judicata principles. [62] They have flouted the ordinary rules on the severability of uncon- stitutional provisions, [63] as well as the rule that statutes should be read where possible to avoid unconstitutional- ity. [64] And they have distorted First Amendment doc- trines.
When vindicating a doctrinal innovation requires courts
to engineer exceptions to longstanding background rules,
the doctrine “has failed to deliver the ‘principled and intel-
ligible’ development of the law that
stare decisis
purports to
secure.”
Id
., at ___ (T HOMAS , J., dissenting) (slip op., at 19)
(quoting
Vasquez
v.
Hillery
,
E
Reliance interests. We last consider whether overruling Roe and Casey will upend substantial reliance interests.
[60] Compare
United States
v.
Salerno
,
[62] Compare id. , at 598–606 (majority opinion), with id., at 645–666 (A LITO , J., dissenting).
[63] Compare id. , at 623–626 (majority opinion), with id ., at 644–645 (A LITO , J., dissenting).
[64] See
Stenberg
v.
Carhart
,
senting); id. , at 765 (Kennedy, J., dissenting).
See
Ramos
, 590 U. S., at ___ (opinion of K AVANAUGH , J.)
(slip op., at 15);
Janus
,
1
Traditional reliance interests arise “where advance plan-
ning of great precision is most obviously a necessity.”
Ca-
sey
, 505 U. S., at 856 (joint opinion); see also
Payne
, 501
U. S., at 828. In
Casey
, the controlling opinion conceded
that those traditional reliance interests were not implicated
because getting an abortion is generally “unplanned activ-
ity,” and “reproductive planning could take virtually imme-
diate account of any sudden restoration of state authority
to ban abortions.”
Unable to find reliance in the conventional sense, the con- trolling opinion in Casey perceived a more intangible form of reliance. It wrote that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Ibid. But this Court is ill-equipped to assess “gen- eralized assertions about the national psyche.” Id. , at 957 (opinion of Rehnquist, C. J.). ’s notion of reliance thus finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in “cases involving property and contract rights.” Payne , 501 U. S., at 828.
When a concrete reliance interest is asserted, courts are equipped to evaluate the claim, but assessing the novel and *73 intangible form of reliance endorsed by the plurality is another matter. That form of reliance depends on an em- pirical 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 contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women. Compare Brief for Petitioners 34– 36; Brief for Women Scholars et al. as Amici Curiae 13–20, 29–41, with Brief for Respondents 36–41; Brief for National Women’s Law Center et al. as Amici Curiae 15–32. The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes, and the Ca- sey plurality’s speculations and weighing of the relative im- portance of the fetus and mother represent a departure from the “original constitutional proposition” that “courts do not substitute their social and economic beliefs for the judgment of legislative bodies.” Ferguson v. Skrupa , 372 U. S. 726, 729–730 (1963).
Our decision returns the issue of abortion to those legis- lative bodies, and it allows women on both sides of the abor- tion issue to seek to affect the legislative process by influ- encing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or po- litical power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. [66] In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, [67] constituted
[66] See Dept. of Commerce, U. S. Census Bureau (Census Bureau), An Analysis of the 2018 Congressional Election 6 (Dec. 2021) (Fig. 5) (show- ing that women made up over 50 percent of the voting population in every congressional election between 1978 and 2018). Census Bureau, QuickFacts, Mississippi (July 1, 2021), https://www.
55.5 percent of the voters who cast ballots. [68]
Unable to show concrete reliance on
Roe
and
Casey
them-
selves, the Solicitor General suggests that overruling those
decisions would “threaten the Court’s precedents holding
that the Due Process Clause protects other rights.” Brief
for United States 26 (citing
Obergefell
,
IV
Having shown that traditional stare decisis factors do not weigh in favor of retaining Roe or , we must address one final argument that featured prominently in the Casey plurality opinion.
The argument was cast in different terms, but stated simply, it was essentially as follows. The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not “social and political pressures.” 505 U. S., at 865 . There is a special danger that the public will census.gov/quickfacts/MS. Census Bureau, Voting and Registration in the Election of November
2020, Table 4b: Reported Voting and Registration, by Sex, Race and His-
panic Origin, for States: November 2020, https://www.census.gov/data/
tables/time-series/demo/voting-and-registration/p20-585.html.
*75
perceive a decision as having been made for unprincipled
reasons when the Court overrules a controversial “water-
shed” decision, such as
Roe
.
This analysis starts out on the right foot but ultimately
veers off course. The
Casey
plurality was certainly right
that it is important for the public to perceive that our deci-
sions are based on principle, and we should make every ef-
fort to achieve that objective by issuing opinions that care-
fully show how a proper understanding of the law leads to
the results we reach. But we cannot exceed the scope of our
authority under the Constitution, and we cannot allow our
decisions to be affected by any extraneous influences such
as concern about the public’s reaction to our work. Cf.
Texas
v.
Johnson
, 491 U. S. 397 (1989);
Brown
, 347 U. S.
483. That is true both when we initially decide a constitu-
tional issue
and
when we consider whether to overrule a
prior decision. As Chief Justice Rehnquist explained, “The
Judicial Branch derives its legitimacy, not from following
public opinion, but from deciding by its best lights whether
legislative enactments of the popular branches of Govern-
ment comport with the Constitution. The doctrine of
stare
decisis
is an adjunct of this duty, and should be no more
subject to the vagaries of public opinion than is the basic
judicial task.”
Casey
,
The Casey plurality “call[ed] the contending sides of a na- tional controversy to end their national division,” and claimed the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying *76 that the matter was closed. Id., at 867. That unprece- dented claim exceeded the power vested in us by the Con- stitution. As Alexander Hamilton famously put it, the Con- stitution gives the judiciary “neither Force nor Will.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Our sole au- thority is to exercise “judgment”—which is to say, the au- thority to judge what the law means and how it should ap- ply to the case at hand. Ibid. The Court has no authority to decree that an erroneous precedent is permanently ex- empt from evaluation under traditional stare decisis princi- ples. A precedent of this Court is subject to the usual prin- ciples 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 and Loch- ner would still be the law. That is not how stare decisis op- erates.
The
Casey
plurality also misjudged the practical limits of
this Court’s influence.
Roe
certainly did not succeed in end-
ing division on the issue of abortion. On the contrary,
Roe
“inflamed” a national issue that has remained bitterly divi-
sive for the past half century.
Casey
,
Neither decision has ended debate over the issue of a
constitutional right to obtain an abortion. Indeed, in this
case, 26 States expressly ask us to overrule and
Casey
and to return the issue of abortion to the people and their
elected representatives. This Court’s inability to end de-
bate on the issue should not have been surprising. This
Court cannot bring about the permanent resolution of a
rancorous national controversy simply by dictating a settle-
ment and telling the people to move on. Whatever influence
the Court may have on public attitudes must stem from the
*77
69
strength of our opinions, not an attempt to exercise “raw
judicial power.”
Roe
,
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 de- cide this case accordingly.
We therefore hold that the Constitution does not confer a right to abortion. and must be overruled, and the authority to regulate abortion must be returned to the peo- ple and their elected representatives.
V A The dissent argues that we have “abandon[ed]” stare de- cisis , post, at 30, but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition. The dissent’s foundational contention is that the Court should never (or perhaps almost never) over- rule an egregiously wrong constitutional precedent unless the Court can “poin[t] to major legal or factual changes un- dermining [the] decision’s original basis.” Post , at 37. To support this contention, the dissent claims that Brown v. Board of Education , 347 U. S. 483, and other landmark cases overruling prior precedents “responded to changed law and to changed facts and attitudes that had taken hold throughout society.” Post, at 43. The unmistakable impli- cation of this argument is that only the passage of time and new developments justified those decisions. Recognition that the cases they overruled were egregiously wrong on the day they were handed down was not enough.
The Court has never adopted this strange new version of *78 stare decisis —and with good reason. Does the dissent really maintain that overruling Plessy was not justified until the country had experienced more than a half-century of state- sanctioned segregation and generations of Black school children had suffered all its effects? Post, at 44–45.
Here is another example. On the dissent’s view, it must
have been wrong for
West Virginia Bd. of Ed.
v.
Barnette
,
Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important deci- sion that is egregiously wrong. When that happens, stare decisis is not a straitjacket. And indeed, the dissent even- tually admits that a decision could “be overruled just be- cause it is terribly wrong,” though the dissent does not ex- plain when that would be so. Post , at 45.
Even if the dissent were correct in arguing that an egre- giously wrong decision should (almost) never be overruled unless its mistake is later highlighted by “major legal or factual changes,” reexamination of and Casey would be amply justified. We have already mentioned a number of post- developments, see supra , at 33–34, 59–63, but the most profound change may be the failure of the Casey plurality’s call for “the contending sides” in the controversy about abortion “to end their national division,” 505 U. S., at *79 71 867. That has not happened, and there is no reason to think that another decision sticking with Roe would achieve what Casey could not.
The dissent, however, is undeterred. It contends that the “very controversy surrounding Roe and Casey ” is an im- portant stare decisis consideration that requires upholding those precedents. See post, at 55–57. The dissent charac- terizes Casey as a “precedent about precedent” that is per- manently shielded from further evaluation under tradi- tional stare decisis principles. See post, at 57. But as we have explained, Casey broke new ground when it treated the national controversy provoked by Roe as a ground for refusing to reconsider that decision, and no subsequent case has relied on that factor. Our decision today simply applies longstanding stare decisis factors instead of applying a ver- sion of the doctrine that seems to apply only in abortion cases.
Finally, the dissent suggests that our decision calls into
question
Griswold
,
Eisenstadt
,
Lawrence
, and
Obergefell
.
Post
, at 4–5, 26–27, n. 8. But we have stated unequivocally
that “[n]othing in this opinion should be understood to cast
doubt on precedents that do not concern abortion.”
Supra
,
at 66. We have also explained why that is so: rights regard-
ing contraception and same-sex relationships are inher-
ently different from the right to abortion because the latter
(as we have stressed) uniquely involves what
Roe
and
Casey
termed “potential life.” ,
B
We now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled. That opinion (which for convenience we will call simply “the concurrence”) recommends a “more measured course,” which it defends based on what it claims is “a straightforward stare decisis analysis.” Post , at 1 (opinion of R OBERTS , C. J.). The concurrence would “leave for another day whether to reject any right to an abortion at all,” post , at 7, and would hold only that if the Constitu- tion protects any such right, the right ends once women have had “a reasonable opportunity” to obtain an abortion, post , at 1. The concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Missis- sippi’s law, is enough—at least “absent rare circum- stances.” Post , at 2, 10.
There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party. As we have recounted, both parties and the Solicitor General have urged us either to reaffirm or overrule Roe and . See supra , at 4–5. And when the specific ap- proach advanced by the concurrence was broached at oral argument, both respondents and the Solicitor General em- phatically rejected it. Respondents’ counsel termed it “com- pletely unworkable” and “less principled and less workable than viability.” Tr. of Oral Arg. 54. The Solicitor General argued that abandoning the viability line would leave courts and others with “no continued guidance.” Id ., at 101. What is more, the concurrence has not identified any of the *81 73 more than 130 amicus briefs filed in this case that advo- cated its approach. The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt.” Post , at 3.
The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach. The concur- rence would “discar[d]” “the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is regarded as ‘viable’ outside the womb.” Post , at 2. But this rule was a critical component of the holdings in Roe and Casey , and stare decisis is “a doc- trine of preservation, not transformation,” Citizens United Federal Election Comm’n , 558 U. S. 310, 384 (2010) (R OBERTS , C. J., concurring). Therefore, a new rule that discards the viability rule cannot be defended on stare deci- sis grounds.
The concurrence concedes that its approach would “not be available” if “the rationale of Roe and were inextrica- bly entangled with and dependent upon the viability stand- ard.” Post , at 7. But the concurrence asserts that the via- bility line is separable from the constitutional right they recognized, and can therefore be “discarded” without dis- turbing any past precedent. Post , at 7–8. That is simply incorrect.
Ro
e’s trimester rule was expressly tied to viability, see
The holding in
Colautti
v.
Franklin
,
When the Court reconsidered
Roe
in , it left no
doubt about the importance of the viability rule. It de-
scribed the rule as ’s “central holding,”
Our subsequent cases have continued to recognize the
centrality of the viability rule. See
Whole Women’s Health
,
Not only is the new rule proposed by the concurrence in-
consistent with
Casey’
s unambiguous “language,”
post
, at 8,
it is also contrary to the judgment in that case and later
abortion cases. In , the Court held that Pennsylva-
nia’s spousal-notification provision was facially unconstitu-
tional, not just that it was unconstitutional as applied to
abortions sought prior to the time when a woman has had
a reasonable opportunity to choose. See
For all these reasons,
stare decisis
cannot justify the new
“reasonable opportunity” rule propounded by the concur-
rence. If that rule is to become the law of the land, it must
stand on its own, but the concurrence makes no attempt to
show that this rule represents a correct interpretation of
the Constitution. The concurrence does not claim that the
right to a reasonable opportunity to obtain an abortion is
“ ‘deeply rooted in this Nation’s history and tradition’ ” and
“ ‘implicit in the concept of ordered liberty.’ ”
Glucksberg
,
The concurrence would “leave for another day whether to
reject any right to an abortion at all,”
post
, at 7, but “an-
other day” would not be long in coming. Some States have
set deadlines for obtaining an abortion that are shorter
than Mississippi’s. See,
e.g.
,
Memphis Center for Reproduc-
tive Health
v.
Slatery
, 14 F. 4th, at 414 (considering law
with bans “at cascading intervals of two to three weeks” be-
ginning at six weeks), reh’g en banc granted,
Even if the Court ultimately adopted the new rule sug- gested by the concurrence, we would be faced with the dif- ficult problem of spelling out what it means. For example, if the period required to give women a “reasonable” oppor- tunity to obtain an abortion were pegged, as the concur- rence seems to suggest, at the point when a certain percent- age of women make that choice, see post , at 1–2, 9–10, we would have to identify the relevant percentage. It would also be necessary to explain what the concurrence means when it refers to “rare circumstances” that might justify an exception. Post , at 10. And if this new right aims to give women a reasonable opportunity to get an abortion, it would be necessary to decide whether factors other than promptness in deciding might have a bearing on whether such an opportunity was available.
In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by and would be prolonged. It is far better—for this Court *85 and the country—to face up to the real issue without fur- ther delay.
VI
We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate stand- ard.
A
Under our precedents, rational-basis review is the appro- priate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history. See supra, at 8–39.
It follows that the States may regulate abortion for legit-
imate reasons, and when such regulations are challenged
under the Constitution, courts cannot “substitute their so-
cial and economic beliefs for the judgment of legislative bod-
ies.”
Ferguson
,
A law regulating abortion, like other health and welfare
laws, is entitled to a “strong presumption of validity.”
Hel-
ler Doe
,
B
These legitimate interests justify Mississippi’s Gesta- tional Age Act. Except “in a medical emergency or in the case of a severe fetal abnormality,” the statute prohibits abortion “if the probable gestational age of the unborn hu- man being has been determined to be greater than fifteen (15) weeks.” Miss. Code Ann. §41–41–191(4)(b). The Mis- sissippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.” §2(b)(i). The legislature also found that abortions performed after 15 weeks typi- cally use the dilation and evacuation procedure, and the legislature found the use of this procedure “for nonthera- peutic or elective reasons [to be] a barbaric practice, dan- gerous for the maternal patient, and demeaning to the med- ical profession.” §2(b)(i)(8); see also Gonzales , 550 U. S., at 135–143 (describing such procedures). These legitimate in- terests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail.
VII
We end this opinion where we began. Abortion presents *87 79 Appendix A to opinion of the Court a profound moral question. The Constitution does not pro- hibit the citizens of each State from regulating or prohibit- ing abortion. and arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered. APPENDICES A This appendix contains statutes criminalizing abortion at all stages of pregnancy in the States existing in 1868. The statutes appear in chronological order.
1. Missouri (1825):
Sec. 12. “That every person who shall wilfully and maliciously administer or cause to be administered to or taken by any person, any poison, or other noxious, poisonous or destructive substance or liquid, with an intention to harm him or her thereby to murder, or thereby to cause or procure the miscarriage of any woman then being with child , and shall thereof be duly convicted, shall suffer imprisonment not exceeding seven years, and be fined not exceeding three thousand dollars.”
2. Illinois (1827):
Sec. 46. “Every person who shall wilfully and mali- ciously administer, or cause to be administered to, or taken by any person, any poison, or other noxious or 1825 Mo. Laws p. 283 (emphasis added); see also, Mo. Rev. Stat., Art. II, §§10, 36 (1835) (extending liability to abortions performed by instru- ment and establishing differential penalties for pre- and post-quickening abortion) (emphasis added).
Appendix A to opinion of the Court destructive substance or liquid, with an intention to cause the death of such person, or to procure the mis- carriage of any woman, then being with child , and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three years, and be fined in a sum not exceeding one thousand dollars.” [70] 3. New York (1828):
Sec. 9. “Every person who shall administer to any woman pregnant with a quick child , any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to de- stroy such child, unless the same shall have been nec- essary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of man- slaughter in the second degree.” Sec. 21. “Every person who shall willfully adminis- ter to any pregnant woman , any medicine, drug, sub- stance or thing whatever, or shall use or employ any instrument of other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose; shall, upon conviction, be punished by imprisonment in a county jail not more than one year, or by fine not ex- ceeding five hundred dollars, or by both such fine and imprisonment.”
[70] Ill. Rev. Code §46 (1827) (emphasis added); see also Ill. Rev. Code §46 (1833) (same); 1867 Ill. Laws p. 89 (extending liability to abortions “by means of any instrument[s]” and raising penalties to imprisonment “not less than two nor more than ten years”). N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 2, §9 (emphasis added); Tit. 6, §21 *89 81
Appendix A to opinion of the Court 4. Ohio (1834):
Sec. 1. “Be it enacted by the General Assembly of State of Ohio, That any physician, or other person, who shall wilfully administer to any pregnant woman any medicine, drug, substance, or thing whatever, or shall use any instrument or other means whatever, with in- tent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been ad- vised by two physicians to be necessary for that pur- pose, shall, upon conviction, be punished by imprison- ment in the county jail not more than one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.”
Sec. 2. “That any physician, or other person, who shall administer to any woman pregnant with a quick child , any medicine, drug, or substance whatever, or shall use or employ any instrument, or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physi- cians to be necessary for such purpose, shall, in case of the death of such child or mother in consequence thereof, be deemed guilty of high misdemeanor, and, upon conviction thereof, shall be imprisoned in the pen- itentiary not more than seven years, nor less than one year.”
5. Indiana (1835):
Sec. 3. “That every person who shall wilfully admin- ister to any pregnant woman , any medicine, drug, sub- stance or thing whatever, or shall use or employ any instrument or other means whatever, with intent (1828) (emphasis added); 1829 N. Y. Laws p. 19 (codifying these provi- sions in the revised statutes). 1834 Ohio Laws pp. 20–21 (emphasis deleted and added).
Appendix A to opinion of the Court thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall upon conviction be pun- ished by imprisonment in the county jail any term of [time] not exceeding twelve months and be fined any sum not exceeding five hundred dollars.” [73] 6. Maine (1840):
Sec. 13. “Every person, who shall administer to any woman pregnant with child, whether such child be quick or not , any medicine, drug or substance what- ever, or shall use or employ any instrument or other means whatever, with intent to destroy such child, and shall thereby destroy such child before its birth, unless the same shall have been done as necessary to preserve the life of the mother, shall be punished by imprison- ment in the state prison, not more than five years, or by fine, not exceeding one thousand dollars, and im- prisonment in the county jail, not more than one year.” Sec. 14. “Every person, who shall administer to any woman, pregnant with child, whether such child shall be quick or not , any medicine, drug or substance what- ever, or shall use or employ any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same shall have been done, as necessary to preserve her life, shall be punished by imprisonment in the county jail, not more than one year, or by fine, not exceeding one thousand dollars.”
7. Alabama (1841):
Sec. 2. “Every person who shall wilfully administer to any pregnant woman any medicines, drugs, sub- stance or thing whatever, or shall use and employ any [73] 1835 Ind. Laws p. 66 (emphasis added). Me. Rev. Stat., Tit. 12, ch. 160, §§13–14 (1840) (emphasis added). *91 83
Appendix A to opinion of the Court instrument or means whatever with intent thereby to procure the miscarriage of such woman, unless the same shall be necessary to preserve her life, or shall have been advised by a respectable physician to be nec- essary for that purpose, shall upon conviction, be pun- ished by fine not exceeding five hundred dollars, and by imprisonment in the county jail, not less than three, and not exceeding six months.” [75] 8. Massachusetts (1845):
Ch. 27. “Whoever, maliciously or without lawful jus- tification, with intent to cause and procure the miscar- riage of a woman then pregnant with child , shall ad- minister to her, prescribe for her, or advise or direct her to take or swallow, any poison, drug, medicine or nox- ious thing, or shall cause or procure her with like in- tent, to take or swallow any poison, drug, medicine or noxious thing; and whoever maliciously and without lawful justification, shall use any instrument or means whatever with the like intent, and every person, with the like intent, knowingly aiding and assisting such of- fender or offenders, shall be deemed guilty of felony, if the woman die in consequence thereof, and shall be im- prisoned not more than twenty years, nor less than five years in the State Prison; and if the woman doth not die in consequence thereof, such offender shall be guilty of a misdemeanor, and shall be punished by im- prisonment not exceeding seven years, nor less than one year, in the state prison or house of correction, or common jail, and by fine not exceeding two thousand dollars.”
9. Michigan (1846):
Sec. 33. “Every person who shall administer to any [75] 1841 Ala. Acts p. 143 (emphasis added). 1845 Mass. Acts p. 406 (emphasis added).
Appendix A to opinion of the Court woman pregnant with a quick child , any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to de- stroy such child, unless the same shall have been nec- essary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of man- slaughter.”
Sec. 34. “Every person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished by imprisonment in a county jail not more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.” 10. Vermont (1846):
Sec. 1. “Whoever maliciously, or without lawful jus- tification with intent to cause and procure the miscar- riage of a woman, then pregnant with child, shall ad- minister to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine or nox- ious thing, or shall cause or procure her, with like in- tent, to take or swallow any poison, drug, medicine or noxious thing, and whoever maliciously and without lawful justification, shall use any instrument or means whatever, with the like intent, and every person, with the like intent, knowingly aiding and assisting such of- fenders, shall be deemed guilty of felony, if the woman die in consequence thereof, and shall be imprisoned in Mich. Rev. Stat., Tit. 30, ch. 153, §§33–34 (1846) (emphasis added). *93 85 Appendix A to opinion of the Court the state prison, not more than ten years, nor less than five years; and if the woman does not die in conse- quence thereof, such offenders shall be deemed guilty of a misdemeanor; and shall be punished by imprison- ment in the state prison not exceeding three years, nor less than one year, and pay a fine not exceeding two hundred dollars.” [78]
11. Virginia (1848):
Sec. 9. “Any free person who shall administer to any pregnant woman , any medicine, drug or substance whatever, or use or employ any instrument or other means with intent thereby to destroy the child with which such woman may be pregnant, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, unless the same shall have been done to preserve the life of such woman, shall be punished, if the death of a quick child be thereby produced, by confinement in the peni- tentiary, for not less than one nor more than five years, or if the death of a child, not quick, be thereby pro- duced, by confinement in the jail for not less than one nor more than twelve months.” 12. New Hampshire (1849):
Sec. 1. “That every person, who shall wilfully admin- ister to any pregnant woman , any medicine, drug, sub- stance or thing whatever, or shall use or employ any instrument or means whatever with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physi- cians to be necessary for that purpose, shall, upon con- viction, be punished by imprisonment in the county jail [78] 1846 Vt. Acts & Resolves pp. 34–35 (emphasis added). 1848 Va. Acts p. 96 (emphasis added).
Appendix A to opinion of the Court not more than one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprison- ment at the discretion of the Court.” Sec. 2. “Every person who shall administer to any woman pregnant with a quick child , any medicine, drug or substance whatever, or shall use or employ any instrument or means whatever, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for such purpose, shall, upon conviction, be punished by fine not exceeding one thousand dollars, and by con- finement to hard labor not less than one year, nor more than ten years.”
13. New Jersey (1849):
“That if any person or persons, maliciously or with- out lawful justification, with intent to cause and pro- cure the miscarriage of a woman then pregnant with child , shall administer to her, prescribe for her, or ad- vise or direct her to take or swallow any poison, drug, medicine, or noxious thing; and if any person or per- sons maliciously, and without lawful justification, shall use any instrument or means whatever, with the like intent; and every person, with the like intent, know- ingly aiding and assisting such offender or offenders, shall, on conviction thereof, be adjudged guilty of a high misdemeanor; and if the woman die in consequence thereof, shall be punished by fine, not exceeding one thousand dollars, or imprisonment at hard labour for any term not exceeding fifteen years, or both; and if the woman doth not die in consequence thereof, such of- fender shall, on conviction thereof, be adjudged guilty of a misdemeanor, and be punished by fine, not exceed- 1849 N. H. Laws p. 708 (emphasis added). *95 87 Appendix A to opinion of the Court ing five hundred dollars, or imprisonment at hard la- bour, for any term not exceeding seven years, or both.” [81]
14. California (1850):
Sec. 45. “And every person who shall administer or cause to be administered or taken, any medical sub- stances, or shall use or cause to be used any instru- ments whatever, with the intention to procure the mis- carriage of any woman then being with child , and shall be thereof duly convicted, shall be punished by impris- onment in the State Prison for a term not less than two years, nor more than five years: Provided, that no phy- sician shall be affected by the last clause of this section, who, in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.” [82] 15. Texas (1854):
Sec. 1. “If any person, with the intent to procure the miscarriage of any woman being with child , unlawfully and maliciously shall administer to her or cause to be taken by her any poison or other noxious thing, or shall use any instrument or any means whatever, with like intent, every such offender, and every person counsel- ling or aiding or abetting such offender, shall be pun- ished by confinement to hard labor in the Penitentiary not exceeding ten years.” 16. Louisiana (1856):
Sec. 24. “Whoever shall feloniously administer or cause to be administered any drug, potion, or any other thing to any woman, for the purpose of procuring a premature delivery, and whoever shall administer or [81] 1849 N. J. Laws pp. 266–267 (emphasis added).
[82] 1850 Cal. Stats. p. 233 (emphasis added and deleted). 1854 Tex. Gen. Laws p. 58 (emphasis added).
Appendix A to opinion of the Court cause to be administered to any woman pregnant with child , any drug, potion, or any other thing, for the pur- pose of procuring abortion, or a premature delivery, shall be imprisoned at hard labor, for not less than one, nor more than ten years.” [84] 17. Iowa (1858):
Sec. 1. “That every person who shall willfully admin- ister to any pregnant woman , any medicine, drug, sub- stance or thing whatever, or shall use or employ any instrument or other means whatever, with the intent thereby to procure the miscarriage of any such woman, unless the same shall be necessary to preserve the life of such woman, shall upon conviction thereof, be pun- ished by imprisonment in the county jail for a term of not exceeding one year, and be fined in a sum not ex- ceeding one thousand dollars.” [85] 18. Wisconsin (1858):
Sec. 11. “Every person who shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instru- ment or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such pur- pose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of man- slaughter in the second degree.” Sec. 58. “Every person who shall administer to any pregnant woman , or prescribe for any such woman, or advise or procure any such woman to take, any medi- cine, drug, or substance or thing whatever, or shall use [84] La. Rev. Stat. §24 (1856) (emphasis added).
[85] 1858 Iowa Acts p. 93 (codified in Iowa Rev. Laws §4221) (emphasis added). Wis. Rev. Stat., ch. 164, §11, ch. 169, §58 (1858) (emphasis added). *97 89
Appendix A to opinion of the Court or employ any instrument or other means whatever, or advise or procure the same to be used, with intent thereby to procure the miscarriage of any such woman, shall upon conviction be punished by imprisonment in a county jail, not more than one year nor less than three months, or by fine, not exceeding five hundred dollars, or by both fine and imprisonment, at the dis- cretion of the court.”
19. Kansas (1859):
Sec. 10. “Every person who shall administer to any woman, pregnant with a quick child , any medicine, drug or substance whatsoever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessary for that purpose, shall be deemed guilty of manslaughter in the second degree.”
Sec. 37. “Every physician or other person who shall wilfully administer to any pregnant woman any medi- cine, drug or substance whatsoever, or shall use or em- ploy any instrument or means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been neces- sary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail not exceeding one year, or by fine not ex- ceeding five hundred dollars, or by both such fine and imprisonment.”
20. Connecticut (1860):
Sec. 1. “That any person with intent to procure the 1859 Kan. Laws pp. 233, 237 (emphasis added). *98 Appendix A to opinion of the Court miscarriage or abortion of any woman , shall give or ad- minister to her, prescribe for her, or advise, or direct, or cause or procure her to take, any medicine, drug or substance whatever, or use or advise the use of any in- strument, or other means whatever, with the like in- tent, unless the same shall have been necessary to pre- serve the life of such woman, or of her unborn child, shall be deemed guilty of felony, and upon due convic- tion thereof shall be punished by imprisonment in the Connecticut state prison, not more than five years or less than one year, or by a fine of one thousand dollars, or both, at the discretion of the court.” 21. Pennsylvania (1860):
Sec. 87. “If any person shall unlawfully administer to any woman, pregnant or quick with child, or sup- posed and believed to be pregnant or quick with child , any drug, poison, or other substance whatsoever, or shall unlawfully use any instrument or other means whatsoever, with the intent to procure the miscarriage of such woman, and such woman, or any child with which she may be quick, shall die in consequence of ei- ther of said unlawful acts, the person so offending shall be guilty of felony, and shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years.” Sec. 88. “If any person, with intent to procure the miscarriage of any woman , shall unlawfully administer to her any poison, drug or substance whatsoever, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, such person shall be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dol- 1860 Conn. Pub. Acts p. 65 (emphasis added). *99 91 Appendix A to opinion of the Court lars, and undergo an imprisonment, by separate or sol- itary confinement at labor, not exceeding three years.” [89]
22. Rhode Island (1861):
Sec. 1. “Every person who shall be convicted of wil- fully administering to any pregnant woman, or to any woman supposed by such person to be pregnant , any- thing whatever, or shall employ any means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, shall be imprisoned not exceeding one year, or fined not exceeding one thousand dollars.” [90] 23. Nevada (1861):
Sec. 42. “[E]very person who shall administer, or cause to be administered or taken, any medicinal sub- stance, or shall use, or cause to be used, any instru- ments whatever, with the intention to procure the mis- carriage of any woman then being with child , and shall be thereof duly convicted, shall be punished by impris- onment in the Territorial prison, for a term not less than two years, nor more than five years; provided, that no physician shall be affected by the last clause of this section, who, in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.” 24. West Virginia (1863):
West Virginia’s Constitution adopted the laws of Virginia when it became its own State:
“Such parts of the common law and of the laws of the State of Virginia as are in force within the boundaries [89] 1861 Pa. Laws pp. 404–405 (emphasis added).
[90] R. I. Acts & Resolves p. 133 (emphasis added). 1861 Nev. Laws p. 63 (emphasis added and deleted).
Appendix A to opinion of the Court of the State of West Virginia, when this Constitution goes into operation, and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the Legislature.” [92] The Virginia law in force in 1863 stated :
Sec. 8. “Any free person who shall administer to, or cause to be taken, by a woman , any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be confined in the penitentiary not less than one, nor more than five years. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.” [93]
25. Oregon (1864):
Sec. 509. “If any person shall administer to any woman pregnant with child , any medicine, drug or sub- stance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter.” 26. Nebraska (1866):
Sec. 42. “Every person who shall willfully and mali- ciously administer or cause to be administered to or taken by any person, any poison or other noxious or de- structive substance or liquid, with the intention to [92] W. Va. Const., Art. XI, §8 (1862).
[93] Va. Code, Tit. 54, ch. 191, §8 (1849) (emphasis added); see also W. Va. Code, ch. 144, §8 (1870) (similar). Ore. Gen. Laws, Crim. Code, ch. 43, §509 (1865). *101 93
Appendix A to opinion of the Court cause the death of such person, and being thereof duly convicted, shall be punished by confinement in the pen- itentiary for a term not less than one year and not more than seven years. And every person who shall admin- ister or cause to be administered or taken, any such poison, substance or liquid, with the intention to pro- cure the miscarriage of any woman then being with child , and shall thereof be duly convicted, shall be im- prisoned for a term not exceeding three years in the penitentiary, and fined in a sum not exceeding one thousand dollars.”
27. Maryland (1868):
Sec. 2. “And be it enacted, That any person who shall knowingly advertise, print, publish, distribute or circu- late, or knowingly cause to be advertised, printed, pub- lished, distributed or circulated, any pamphlet, printed paper, book, newspaper notice, advertisement or refer- ence containing words or language, giving or conveying any notice, hint or reference to any person, or to the name of any person real or fictitious, from whom; or to any place, house, shop or office, when any poison, drug, mixture, preparation, medicine or noxious thing, or any instrument or means whatever; for the purpose of pro- ducing abortion, or who shall knowingly sell, or cause to be sold any such poison, drug, mixture, preparation, medicine or noxious thing or instrument of any kind whatever; or where any advice, direction, information or knowledge may be obtained for the purpose of caus- ing the miscarriage or abortion of any woman pregnant with child, at any period of her pregnancy , or shall knowingly sell or cause to be sold any medicine, or who shall knowingly use or cause to be used any means Neb. Rev. Stat., Tit. 4, ch. 4, §42 (1866) (emphasis added); see also Neb. Gen. Stat., ch. 58, §§6, 39 (1873) (expanding criminal liability for abortions by other means, including instruments).
Appendix A to opinion of the Court whatsoever for that purpose, shall be punished by im- prisonment in the penitentiary for not less than three years, or by a fine of not less than five hundred nor more than one thousand dollars, or by both, in the dis- cretion of the Court; and in case of fine being imposed, one half thereof shall be paid to the State of Maryland, and one-half to the School Fund of the city or county where the offence was committed; provided, however, that nothing herein contained shall be construed so as to prohibit the supervision and management by a reg- ular practitioner of medicine of all cases of abortion oc- curring spontaneously, either as the result of accident, constitutional debility, or any other natural cause, or the production of abortion by a regular practitioner of medicine when, after consulting with one or more re- spectable physicians, he shall be satisfied that the foe- tus is dead, or that no other method will secure the safety of the mother.”
28. Florida (1868):
Ch. 3, Sec. 11. “Every person who shall administer to any woman pregnant with a quick child any medi- cine, drug, or substance whatever, or shall use or em- ploy any instrument, or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be nec- essary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.” Ch. 8, Sec. 9. “Whoever, with intent to procure mis- carriage of any woman , unlawfully administers to her, or advises, or prescribes for her, or causes to be taken by her, any poison, drug, medicine, or other noxious thing, or unlawfully uses any instrument or other 1868 Md. Laws p. 315 (emphasis deleted and added). *103 95 Appendix A to opinion of the Court means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman does not die in consequence thereof, be punished by imprisonment in the State penittentiary not exceeding seven years, nor less than one year, or by fine not exceeding one thousand dollars.”
29. Minnesota (1873):
Sec. 1. “That any person who shall administer to any woman with child , or prescribe for any such woman, or suggest to, or advise, or procure her to take any medi- cine, drug, substance or thing whatever, or who shall use or employ, or advise or suggest the use or employ- ment of any instrument or other means or force what- ever, with intent thereby to cause or procure the mis- carriage or abortion or premature labor of any such woman, unless the same shall have been necessary to preserve her life, or the life of such child, shall, in case the death of such child or of such woman results in whole or in part therefrom, be deemed guilty of a fel- ony, and upon conviction thereof, shall be punished by imprisonment in the state prison for a term not more than ten (10) years nor less than three (3) years.” Sec. 2. “Any person who shall administer to any woman with child , or prescribe, or procure, or provide for any such woman, or suggest to, or advise, or procure any such woman to take any medicine, drug, substance or thing whatever, or shall use or employ, or suggest, or advise the use or employment of any instrument or other means or force whatever, with intent thereby to cause or procure the miscarriage or abortion or prema- ture labor of any such woman, shall upon conviction thereof be punished by imprisonment in the state prison for a term not more than two years nor less than 1868 Fla. Laws, ch. 1637, pp. 64, 97 (emphasis added). *104 Appendix A to opinion of the Court one year, or by fine not more than five thousand dollars nor less than five hundred dollars, or by such fine and imprisonment both, at the discretion of the court.” [98] 30. Arkansas (1875):
Sec. 1. “That it shall be unlawful for any one to ad- minister or prescribe any medicine or drugs to any woman with child , with intent to produce an abortion, or premature delivery of any foetus before the period of quickening, or to produce or attempt to produce such abortion by any other means; and any person offending against the provision of this section, shall be fined in any sum not exceeding one thousand ($1000) dollars, and imprisoned in the penitentiary not less than one (1) nor more than five (5) years; provided, that this sec- tion shall not apply to any abortion produced by any regular practicing physician, for the purpose of saving the mother’s life.”
31. Georgia (1876):
Sec. 2. “That every person who shall administer to any woman pregnant with a child , any medicine, drug, or substance whatever, or shall use or employ any in- strument or other means, with intent thereby to de- stroy such child, unless the same shall have been nec- essary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or mother be thereby produced, be declared guilty of an assault with intent to murder.”
Sec. 3. “That any person who shall wilfully adminis- ter to any pregnant woman any medicine, drug or sub- stance, or anything whatever, or shall employ any in- strument or means whatever, with intent thereby to [98] 1873 Minn. Laws pp. 117–118 (emphasis added). 1875 Ark. Acts p. 5 (emphasis added and deleted). *105 97
Appendix A to opinion of the Court procure the miscarriage or abortion of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been ad- vised by two physicians to be necessary for that pur- pose, shall, upon conviction, be punished as prescribed in section 4310 of the Revised Code of Georgia.” [100] 32. North Carolina (1881):
Sec. 1. “That every person who shall wilfully admin- ister to any woman either pregnant or quick with child , or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or sub- stance whatever, or shall use or employ any instrument or other means with intent thereby to destroy said child, unless the same shall have been necessary to pre- serve the life of such mother, shall be guilty of a felony, and shall be imprisoned in the state penitentiary for not less than one year nor more than ten years, and be fined at the discretion of the court.” Sec. 2. “That every person who shall administer to any pregnant woman , or prescribe for any such woman, or advise and procure such woman to take any medi- cine, drug or any thing whatsoever, with intent thereby to procure the miscarriage of any such woman, or to injure or destroy such woman, or shall use any instru- ment or application for any of the above purposes, shall be guilty of a misdemeanor, and, on conviction, shall be imprisoned in the jail or state penitentiary for not less than one year or more than five years, and fined at the discretion of the court.” 33. Delaware (1883):
Sec. 2. “Every person who, with the intent to procure [100] 1876 Ga. Acts & Resolutions p. 113 (emphasis added). 1881 N. C. Sess. Laws pp. 584–585 (emphasis added).
Appendix A to opinion of the Court the miscarriage of any pregnant woman or women sup- posed by such person to be pregnant , unless the same be necessary to preserve her life, shall administer to her, advise, or prescribe for her, or cause to be taken by her any poison, drug, medicine, or other noxious thing, or shall use any instrument or other means whatso- ever, or shall aid, assist, or counsel any person so in- tending to procure a miscarriage, whether said miscar- riage be accomplished or not, shall be guilty of a felony, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dol- lars and be imprisoned for a term not exceeding five years nor less than one year.” [102] 34. Tennessee (1883):
Sec. 1. “That every person who shall administer to any woman pregnant with child, whether such child be quick or not , any medicine, drug or substance what- ever, or shall use or employ any instrument, or other means whatever with intent to destroy such child, and shall thereby destroy such child before its birth, unless the same shall have been done with a view to preserve the life of the mother, shall be punished by imprison- ment in the penitentiary not less than one nor more than five years.”
Sec. 2. “Every person who shall administer any sub- stance with the intention to procure the miscarriage of a woman then being with child , or shall use or employ any instrument or other means with such intent, un- less the same shall have been done with a view to pre- serve the life of such mother, shall be punished by im- prisonment in the penitentiary not less than one nor more than three years.” [102] 1883 Del. Laws, ch. 226 (emphasis added). 1883 Tenn. Acts pp. 188–189 (emphasis added). *107 99
Appendix A to opinion of the Court 35. South Carolina (1883):
Sec. 1. “That any person who shall administer to any woman with child , or prescribe for any such woman, or suggest to or advise or procure her to take, any medi- cine, substance, drug or thing whatever, or who shall use or employ, or advise the use or employment of, any instrument or other means of force whatever, with in- tent thereby to cause or procure the miscarriage or abortion or premature labor of any such woman, unless the same shall have been necessary to preserve her life, or the life of such child, shall, in case the death of such child or of such woman results in whole or in part therefrom, be deemed guilty of a felony, and, upon con- viction thereof, shall be punished by imprisonment in the Penitentiary for a term not more than twenty years nor less than five years.”
Sec. 2. “That any person who shall administer to any woman with child , or prescribe or procure or provide for any such woman, or advise or procure any such woman to take, any medicine, drug, substance or thing whatever, or shall use or employ or advise the use or employment of, any instrument or other means of force whatever, with intent thereby to cause or procure the miscarriage or abortion or premature labor of any such woman, shall, upon conviction thereof, be punished by imprisonment in the Penitentiary for a term not more than five years, or by fine not more than five thousand dollars, or by such fine and imprisonment both, at the discretion of the Court; but no conviction shall be had under the provisions of Section 1 or 2 of this Act upon the uncorroborated evidence of such woman.” 36. Kentucky (1910):
Sec. 1. “It shall be unlawful for any person to pre- scribe or administer to any pregnant woman, or to any 1883 S. C. Acts pp. 547–548 (emphasis added). *108 Appendix A to opinion of the Court woman whom he has reason to believe pregnant, at any time during the period of gestation , any drug, medicine or substance, whatsoever, with the intent thereby to procure the miscarriage of such woman, or with like in- tent, to use any instrument or means whatsoever, un- less such miscarriage is necessary to preserve her life; and any person so offending, shall be punished by a fine of not less than five hundred nor more than one thou- sand dollars, and imprisoned in the State prison for not less than one nor more than ten years.” Sec. 2. “If by reason of any of the acts described in Section 1 hereof, the miscarriage of such woman is pro- cured, and she does miscarry, causing the death of the unborn child, whether before or after quickening time, the person so offending shall be guilty of a felony, and confined in the penitentiary for not less than two, nor more than twenty-one years.” Sec. 3. “If, by reason of the commission of any of the acts described in Section 1 hereof, the woman to whom such drug or substance has been administered, or upon whom such instrument has been used, shall die, the person offending shall be punished as now prescribed by law, for the offense of murder or manslaughter, as the facts may justify.”
Sec. 4. “The consent of the woman to the perfor- mance of the operation or administering of the medi- cines or substances, referred to, shall be no defense, and she shall be a competent witness in any prosecu- tion under this act, and for that purpose she shall not be considered an accomplice.” 37. Mississippi (1952):
Sec. 1. “Whoever, by means of any instrument, med- icine, drug, or other means whatever shall willfully and 1910 Ky. Acts pp. 189–190 (emphasis added). *109 101 Appendix B to opinion of the Court knowingly cause any woman pregnant with child to abort or miscarry, or attempts to procure or produce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother’s life, shall be imprisoned in the state penitentiary no less than one (1) year, nor more than ten (10) years; or if the death of the mother results therefrom, the person pro- curing, causing, or attempting to procure or cause the abortion or miscarriage shall be guilty of murder.” Sec. 2. “No act prohibited in section 1 hereof shall be considered as necessary for the preservation of the mother’s life unless upon the prior advice, in writing, of two reputable licensed physicians.” Sec. 3. “The license of any physician or nurse shall be automatically revoked upon conviction under the provisions of this act.”
B
This appendix contains statutes criminalizing abortion at all stages in each of the Territories that became States and in the District of Columbia. The statutes appear in chron- ological order of enactment.
1. Hawaii (1850):
Sec. 1. “Whoever maliciously, without lawful justifi- cation, administers, or causes or procures to be admin- istered any poison or noxious thing to a woman then with child , in order to produce her mis-carriage, or ma- liciously uses any instrument or other means with like intent, shall, if such woman be then quick with child, be punished by fine not exceeding one thousand dollars and imprisonment at hard labor not more than five years. And if she be then not quick with child, shall be punished by a fine not exceeding five hundred dollars, 1952 Miss. Laws p. 289 (codified at Miss. Code Ann. §2223 (1956) (emphasis added)).
Appendix B to opinion of the Court and imprisonment at hard labor not more than two years.”
Sec. 2. “Where means of causing abortion are used for the purpose of saving the life of the woman, the sur- geon or other person using such means is lawfully jus- tified.” [107]
2. Washington (1854):
Sec. 37. “Every person who shall administer to any woman pregnant with a quick child , any medicine, drug, or substance whatever, or shall use or employ any instrument, or other means, with intent thereby to de- stroy such child, unless the same shall have been nec- essary to preserve the life of such mother, shall, in case the death of such child or of such mother be thereby produced, on conviction thereof, be imprisoned in the penitentiary not more than twenty years, nor less than one year.”
Sec. 38. “Every person who shall administer to any pregnant woman, or to any woman who he supposes to be pregnant , any medicine, drug, or substance what- ever, or shall use or employ any instrument, or other means, thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, shall on conviction thereof, be imprisoned in the penitentiary not more than five years, nor less than one year, or be imprisoned in the county jail not more than twelve months, nor less than one month, and be fined in any sum not exceeding one thousand dollars.” 3. Colorado (1861):
[107] Haw. Penal Code, ch. 12, §§1–2 (1850) (emphasis added). Hawaii became a State in 1959. See Presidential Proclamation No. 3309, 73 Stat. c74–c75. Terr. of Wash. Stat., ch. 2, §§37–38, p. 81 (1854) (emphasis added).
Washington became a State in 1889. See Presidential Proclamation No. 8, 26 Stat. 1552–1553. *111 103
Appendix B to opinion of the Court Sec. 42. “[E]very person who shall administer sub- stance or liquid, or who shall use or cause to be used any instrument, of whatsoever kind, with the intention to procure the miscarriage of any woman then being with child , and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three years, and fined in a sum not exceeding one thousand dollars; and if any woman, by reason of such treatment, shall die, the person or persons administering, or causing to be administered, such poison, substance or liquid, or us- ing or causing to be used, any instrument, as aforesaid, shall be deemed guilty of manslaughter, and if con- victed, be punished accordingly.” [109] 4. Idaho (1864):
Sec. 42. “[E]very person who shall administer or cause to be administered, or taken, any medicinal sub- stance, or shall use or cause to be used, any instru- ments whatever, with the intention to procure the mis- carriage of any woman then being with child , and shall be thereof duly convicted, shall be punished by impris- onment in the territorial prison for a term not less than two years, nor more than five years: Provided , That no physician shall be effected by the last clause of this sec- tion, who in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.” 5. Montana (1864):
Sec. 41. “[E]very person who shall administer, or cause to be administered, or taken, any medicinal sub- stance, or shall use, or cause to be used, any instru- [109] 1861 Terr. of Colo. Gen. Laws pp. 296–297. Colorado became a State in 1876. See Presidential Proclamation No. 7, 19 Stat. 665–666. 1863–1864 Terr. of Idaho Laws p. 443. Idaho became a State in 1890. See 26 Stat. 215–219.
Appendix B to opinion of the Court ments whatever, with the intention to produce the mis- carriage of any woman then being with child , and shall be thereof duly convicted, shall be punished by impris- onment in the Territorial prison for a term not less than two years nor more than five years. Provided , That no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.” [111] 6. Arizona (1865):
Sec. 45. “[E]very person who shall administer or cause to be administered or taken, any medicinal sub- stances, or shall use or cause to be used any instru- ments whatever, with the intention to procure the mis- carriage of any woman then being with child , and shall be thereof duly convicted, shall be punished by impris- onment in the Territorial prison for a term not less than two years nor more than five years: Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties, deems it necessary to produce the miscarriage of any woman in order to save her life.” 7. Wyoming (1869):
Sec. 25. “[A]ny person who shall administer, or cause to be administered, or taken, any such poison, substance or liquid, or who shall use, or cause to be used, any instrument of whatsoever kind, with the in- tention to procure the miscarriage of any woman then being with child , and shall thereof be duly convicted, shall be imprisoned for a term not exceeding three [111] 1864 Terr. of Mont. Laws p. 184. Montana became a State in 1889. See Presidential Proclamation No. 7, 26 Stat. 1551–1552. Howell Code, ch. 10, §45 (1865). Arizona became a State in 1912.
See Presidential Proclamation of Feb. 14, 1912, 37 Stat. 1728–1729. *113 105
Appendix B to opinion of the Court years, in the penitentiary, and fined in a sum not ex- ceeding one thousand dollars; and if any woman by rea- son of such treatment shall die, the person, or persons, administering, or causing to be administered such poi- son, substance, or liquid, or using or causing to be used, any instrument, as aforesaid, shall be deemed guilty of manslaughter, and if convicted, be punished by impris- onment for a term not less than three years in the pen- itentiary, and fined in a sum not exceeding one thou- sand dollars, unless it appear that such miscarriage was procured or attempted by, or under advice of a phy- sician or surgeon, with intent to save the life of such woman, or to prevent serious and permanent bodily in- jury to her.” [113]
8. Utah (1876):
Sec. 142. “Every person who provides, supplies, or administers to any pregnant woman , or procures any such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscar- riage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not less than two nor more than ten years.”
9. North Dakota (1877):
Sec. 337. “Every person who administers to any pregnant woman , or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs [113] 1869 Terr. of Wyo. Gen. Laws p. 104 (emphasis added). Wyoming became a State in 1889. See 26 Stat. 222–226. Terr. of Utah Comp. Laws §1972 (1876) (emphasis added). Utah
became a State in 1896. See Presidential Proclamation No. 9, 29 Stat. 876–877.
Appendix B to opinion of the Court any instrument, or other means whatever with intent thereby to procure the miscarriage of such woman, un- less the same is necessary to preserve her life, is pun- ishable by imprisonment in the territorial prison not exceeding three years, or in a county jail not exceeding one year.” [115]
10. South Dakota (1877): Same as North Dakota . 11. Oklahoma (1890):
Sec. 2187. “Every person who administers to any pregnant woman , or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, un- less the same is necessary to preserve her life, is pun- ishable by imprisonment in the Territorial prison not exceeding three years, or in a county jail not exceeding one year.”
12. Alaska (1899):
Sec. 8. “That if any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed [115] Dakota Penal Code §337 (1877) (codified at N. D. Rev. Code §7177 (1895)), and S. D. Rev. Penal Code Ann. §337 (1883). North and South Dakota became States in 1889. See Presidential Proclamation No. 5, 26 Stat. 1548–1551. Okla. Stat. §2187 (1890) (emphasis added). Oklahoma became a
State in 1907. See Presidential Proclamation of Nov. 16, 1907, 35 Stat. 2160–2161. *115 107
Appendix B to opinion of the Court guilty of manslaughter, and shall be punished accord- ingly.” [117]
13. New Mexico (1919):
Sec. 1. “Any person who shall administer to any pregnant woman any medicine , drug or substance whatever, or attempt by operation or any other method or means to produce an abortion or miscarriage upon such woman, shall be guilty of a felony, and, upon con- viction thereof, shall be fined not more than two thou- sand ($2,000.00) Dollars, nor less than five hundred ($500.00) Dollars, or imprisoned in the penitentiary for a period of not less than one nor more than five years, or by both such fine and imprisonment in the discretion of the court trying the case.” Sec. 2. “Any person committing such act or acts men- tioned in section one hereof which shall culminate in the death of the woman shall be deemed guilty of mur- der in the second degree; Provided , however, an abor- tion may be produced when two physicians licensed to practice in the State of New Mexico, in consultation, deem it necessary to preserve the life of the woman, or to prevent serious and permanent bodily injury.” Sec. 3. “For the purpose of the act, the term “preg- nancy” is defined as that condition of a woman from the date of conception to the birth of her child .”
* * *
District of Columbia (1901):
Sec. 809. “Whoever, with intent to procure the mis- carriage of any woman , prescribes or administers to her [117] 1899 Alaska Sess. Laws ch. 2, p. 3 (emphasis added). Alaska be- came a State in 1959. See Presidential Proclamation No. 3269, 73 Stat. c16. N. M. Laws p. 6 (emphasis added). New Mexico became a State in
1912. See Presidential Proclamation of Jan. 6, 1912, 37 Stat. 1723–1724.
Appendix B to opinion of the Court any medicine, drug, or substance whatever, or with like intent uses any instrument or means, unless when nec- essary to preserve her life or health and under the di- rection of a competent licensed practitioner of medi- cine, shall be imprisoned for not more than five years; or if the woman or her child dies in consequence of such act, by imprisonment for not less than three nor more than twenty years.” §809, 31 Stat. 1322 (1901) (emphasis added).
T HOMAS , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 19–1392 _________________ THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL ., PETITIONERS JACKSON WOMEN’S
HEALTH ORGANIZATION, ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT [June 24, 2022] J USTICE T HOMAS , concurring.
I join the opinion of the Court because it correctly holds
that there is no constitutional right to abortion. Respond-
ents invoke one source for that right: the Fourteenth
Amendment’s guarantee that no State shall “deprive any
person of life, liberty, or property without due process of
law.” The Court well explains why, under our substantive
due process precedents, the purported right to abortion is
not a form of “liberty” protected by the Due Process Clause.
Such a right is neither “deeply rooted in this Nation’s his-
tory and tradition” nor “implicit in the concept of ordered
liberty.”
Washington
v.
Glucksberg
, 521 U. S. 702, 721
(1997) (internal quotation marks omitted). “[T]he idea that
the Framers of the Fourteenth Amendment understood the
Due Process Clause to protect a right to abortion is farcical.”
June Medical Services L. L. C.
v.
Russo
,
I write separately to emphasize a second, more funda- mental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evi- dence indicates that “due process of law” merely required executive and judicial actors to comply with legislative en- actments and the common law when depriving a person of
T HOMAS , J., concurring
life, liberty, or property. See,
e.g., Johnson
v.
United States
,
As I have previously explained, “substantive due process”
is an oxymoron that “lack[s] any basis in the Constitution.”
Johnson
,
The Court today declines to disturb substantive due pro- cess jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut ,
T HOMAS , J., concurring
For that reason, in future cases, we should reconsider all
of this Court’s substantive due process precedents, includ-
ing
Griswold
,
Lawrence
, and
Obergefell
. Because any sub-
stantive due process decision is “demonstrably erroneous,”
Ramos
v.
Louisiana
,
*
Griswold
v.
Connecticut
purported not to rely on the Due Process
Clause, but rather reasoned “that specific guarantees in the Bill of
Rights”—including rights enumerated in the First, Third, Fourth, Fifth,
and Ninth Amendments—“have penumbras, formed by emanations,”
that create “zones of privacy.” 381 U. S., at 484. Since
Griswold,
the
Court, perhaps recognizing the facial absurdity of
Griswold
’s penumbral
argument, has characterized the decision as one rooted in substantive
due process. See,
e.g., Obergefell
v.
Hodges
,
T HOMAS , J., concurring
14, §1; see
McDonald
,
Moreover, apart from being a demonstrably incorrect
reading of the Due Process Clause, the “legal fiction” of sub-
stantive due process is “particularly dangerous.”
McDon-
ald
,
First, “substantive due process exalts judges at the ex-
pense of the People from whom they derive their authority.”
Ibid
. Because the Due Process Clause “speaks only to ‘pro-
cess,’ the Court has long struggled to define what substan-
tive rights it protects.”
Timbs
v.
Indiana
,
Nowhere is this exaltation of judicial policymaking clearer than this Court’s abortion jurisprudence. In v. Wade , 410 U. S. 113 (1973), the Court divined a right to
T HOMAS , J., concurring
abortion because it “fe[lt]” that “the Fourteenth Amend-
ment’s concept of personal liberty” included a “right of pri-
vacy” that “is broad enough to encompass a woman’s deci-
sion whether or not to terminate her pregnancy.”
Id.,
at
153. In
Planned Parenthood of Southeastern Pa.
v.
Casey
,
Now, in this case, the nature of the purported “liberty” supporting the abortion right has shifted yet again. Re- spondents and the United States propose no fewer than three different interests that supposedly spring from the Due Process Clause. They include “bodily integrity,” “per- sonal autonomy in matters of family, medical care, and faith,” Brief for Respondents 21, and “women’s equal citi- zenship,” Brief for United States as Amicus Curiae 24. That 50 years have passed since and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a pol- icy goal in desperate search of a constitutional justification.
Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others. See, e.g., Eisenstadt v. Baird , 405 U. S. 438, 453–454 (1972) (relying on Gris- wold to invalidate a state statute prohibiting distribution
T HOMAS , J., concurring
of contraceptives to unmarried persons). Statutory classifi-
cations implicating certain “nonfundamental” rights, mean-
while, receive only cursory review. See,
e.g., Armour
v.
In-
dianapolis
,
Third, substantive due process is often wielded to “disas-
trous ends.”
Gamble
,
T HOMAS , J., concurring
Casey— two of this Court’s “most notoriously incorrect” sub- stantive due process decisions, Timbs , 586 U. S., at ___ (opinion of T HOMAS , J.) (slip op., at 2)—after more than 63 million abortions have been performed, see National Right to Life Committee, Abortion Statistics (Jan. 2022), https:// www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf. The harm caused by this Court’s forays into substantive due process remains immeasurable.
* * *
Because the Court properly applies our substantive due
process precedents to reject the fabrication of a constitu-
tional right to abortion, and because this case does not pre-
sent the opportunity to reject substantive due process en-
tirely, I join the Court’s opinion. But, in future cases, we
should “follow the text of the Constitution, which sets forth
certain substantive rights that cannot be taken away, and
adds, beyond that, a right to due process when life, liberty,
or property is to be taken away.”
Carlton
,
K AVANAUGH , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 19–1392 _________________ THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL ., PETITIONERS JACKSON WOMEN’S
HEALTH ORGANIZATION, ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT [June 24, 2022] J USTICE K AVANAUGH , concurring.
I write separately to explain my additional views about why Roe was wrongly decided, why should be overruled at this time, and the future implications of today’s decision.
I
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 in protecting fetal life. The interests on both sides of the abortion issue are extraordinarily weighty.
On the one side, many pro-choice advocates forcefully ar- gue that the ability to obtain an abortion is critically im- portant for women’s personal and professional lives, and for women’s health. They contend that the widespread availa- bility of abortion has been essential for women to advance in society and to achieve greater equality over the last 50 years. And they maintain that women must have the free- dom to choose for themselves whether to have an abortion.
On the other side, many pro-life advocates forcefully ar- gue that a fetus is a human life. They contend that all hu- man life should be protected as a matter of human dignity
K AVANAUGH , J., concurring
and fundamental morality. And they stress that a signifi- cant percentage of Americans with pro-life views are women.
When it comes to abortion, one interest must prevail over the other at any given point in a pregnancy. Many Ameri- cans of good faith would prioritize the interests of the preg- nant woman. Many other Americans of good faith instead would prioritize the interests in protecting fetal life—at least unless, for example, an abortion is necessary to save the life of the mother. Of course, many Americans are con- flicted or have nuanced views that may vary depending on the particular time in pregnancy, or the particular circum- stances of a pregnancy.
The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. To be sure, this Court has held that the Constitution protects un- enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in Amer- ican history and tradition, as the Court today thoroughly explains.
On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected repre- sentatives to resolve through the democratic process in the The Court’s opinion today also recounts the pre-constitutional common-law history in England. That English history supplies back- ground information on the issue of abortion. As I see it, the dispositive point in analyzing American history and tradition for purposes of the Fourteenth Amendment inquiry is that abortion was largely prohibited in most American States as of 1868 when the Fourteenth Amendment was ratified, and that abortion remained largely prohibited in most American States until was decided in 1973.
K AVANAUGH , J., concurring
States or Congress—like the numerous other difficult ques- tions of American social and economic policy that the Con- stitution does not address.
Because the Constitution is neutral on the issue of abor- tion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.
Instead of adhering to the Constitution’s neutrality, the Court in Roe took sides on the issue and unilaterally de- creed that abortion was legal throughout the United States up to the point of viability (about 24 weeks of pregnancy). The Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of dem- ocratic self-government established by the Constitution.
Some amicus briefs argue that the Court today should not only overrule and return to a position of judicial neu- trality on abortion, but should go further and hold that the Constitution outlaws abortion throughout the United States. No Justice of this Court has ever advanced that po- sition. I respect those who advocate for that position, just as I respect those who argue that this Court should hold that the Constitution legalizes pre-viability abortion throughout the United States. But both positions are wrong as a constitutional matter, in my view. The Consti- tution neither outlaws abortion nor legalizes abortion.
To be clear, then, the Court’s decision today does not out- law abortion throughout the United States. On the con- trary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion. As Justice Scalia stated, the “States may, if they wish, permit abortion on demand, but the Constitution
K AVANAUGH , J., concurring
does not
require
them to do so.”
Planned Parenthood of
Southeastern Pa.
v. ,
Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to read- ily allow abortion. That includes, if they choose, the amici States supporting the plaintiff in this Court: New York, California, Illinois, Maine, Massachusetts, Rhode Island, Vermont, Connecticut, New Jersey, Pennsylvania, Dela- ware, Maryland, Michigan, Wisconsin, Minnesota, New Mexico, Colorado, Nevada, Oregon, Washington, and Ha- waii. By contrast, other States may maintain laws that more strictly limit abortion. After today’s decision, all of the States may evaluate the competing interests and decide how to address this consequential issue.
In arguing for a
constitutional
right to abortion that
would override the people’s choices in the democratic pro-
cess, the plaintiff Jackson Women’s Health Organization
and its
amici
emphasize that the Constitution does not
freeze the American people’s rights as of 1791 or 1868. I
fully agree. To begin, I agree that constitutional rights ap-
ply to situations that were unforeseen in 1791 or 1868—
such as applying the First Amendment to the Internet or
the Fourth Amendment to cars. Moreover, the Constitution
authorizes the creation of new rights—state and federal,
statutory and constitutional. But when it comes to creating
new rights, the Constitution directs the people to the vari-
ous processes of democratic self-government contemplated
by the Constitution—state legislation, state constitutional
amendments, federal legislation, and federal constitutional
In his dissent in
Roe
, Justice Rehnquist indicated that an exception
to a State’s restriction on abortion would be constitutionally required
when an abortion is necessary to save the life of the mother. See v.
Wade
,
K AVANAUGH , J., concurring
amendments. See generally Amdt. 9; Amdt. 10; Art. I, §8; Art. V; J. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 7 − 21, 203 − (2018); A. Amar, America’s Constitution: A Biography 285 − 291, 315 − 347 (2005).
The Constitution does not grant the nine unelected Mem-
bers of this Court the unilateral authority to rewrite the
Constitution to create new rights and liberties based on our
own moral or policy views. As Justice Rehnquist stated,
this Court has not “been granted a roving commission, ei-
ther by the Founding Fathers or by the framers of the Four-
teenth Amendment, to strike down laws that are based
upon notions of policy or morality suddenly found unac-
ceptable by a majority of this Court.”
Furman
v.
Georgia
,
This Court therefore does not possess the authority either
to declare a constitutional right to abortion
or
to declare a
constitutional prohibition of abortion. See , 505 U. S.,
at 953 (Rehnquist, C. J., concurring in judgment in part and
dissenting in part);
id.,
at 980 (opinion of Scalia, J.); v.
Wade
,
In sum, the Constitution is neutral on the issue of abor- tion and allows the people and their elected representatives to address the issue through the democratic process. In my respectful view, the Court in Roe therefore erred by taking sides on the issue of abortion.
II
The more difficult question in this case is stare decisis — that is, whether to overrule the Roe decision.
The principle of stare decisis requires respect for the *129 v.
K AVANAUGH , J., concurring
Court’s precedents and for the accumulated wisdom of the judges who have previously addressed the same issue. Stare decisis is rooted in Article III of the Constitution and is fundamental to the American judicial system and to the stability of American law.
Adherence to precedent is the norm, and
stare decisis
im-
poses a high bar before this Court may overrule a prece-
dent. This Court’s history shows, however, that
stare deci-
sis
is not absolute, and indeed cannot be absolute.
Otherwise, as the Court today explains, many long-since-
overruled cases such as
Plessy
v.
Ferguson
, 163 U. S. 537
(1896);
Lochner
v.
New York
,
In his canonical
Burnet
opinion in 1932, Justice Brandeis
stated that in “cases involving the Federal Constitution,
where correction through legislative action is practically
impossible, this Court has often overruled its earlier deci-
sions.”
Burnet
v.
Coronado Oil & Gas Co.
,
But that history alone does not answer the critical ques- tion: When precisely should the Court overrule an errone- ous constitutional precedent? The history of stare decisis in
K AVANAUGH , J., concurring
this Court establishes that a constitutional precedent may
be overruled only when (i) the prior decision is not just
wrong, but is egregiously wrong, (ii) the prior decision has
caused significant negative jurisprudential or real-world
consequences, and (iii) overruling the prior decision would
not unduly upset legitimate reliance interests. See
Ramos
v.
Louisiana
,
Applying those factors, I agree with the Court today that Roe should be overruled. The Court in Roe erroneously as- signed itself the authority to decide a critically important moral and policy issue that the Constitution does not grant this Court the authority to decide. As Justice Byron White succinctly explained, Roe was “an improvident and extrav- agant exercise of the power of judicial review” because “nothing in the language or history of the Constitution” sup- ports a constitutional right to abortion. Bolton , 410 U. S., at 221 − 222 (dissenting opinion).
Of course, the fact that a precedent is wrong, even egre- giously wrong, does not alone mean that the precedent should be overruled. But as the Court today explains, Roe has caused significant negative jurisprudential and real- world consequences. By taking sides on a difficult and con- tentious issue on which the Constitution is neutral, Roe overreached and exceeded this Court’s constitutional au- thority; gravely distorted the Nation’s understanding of this Court’s proper constitutional role; and caused signifi- cant harm to what Roe itself recognized as the State’s “im- portant and legitimate interest” in protecting fetal life. 410 U. S., at 162. All of that explains why tens of millions of Americans—and the 26 States that explicitly ask the Court to overrule —do not accept Roe even 49 years later. Under the Court’s longstanding stare decisis principles, Roe *131 v.
K AVANAUGH , J., concurring
should be overruled. [3] But the stare decisis analysis here is somewhat more complicated because of Casey . In 1992, 19 years after Roe , Casey acknowledged the continuing dispute over Roe . The Court sought to find common ground that would resolve the abortion debate and end the national controversy. After careful and thoughtful consideration, the Casey plurality reaffirmed a right to abortion through viability (about 24 weeks), while also allowing somewhat more regulation of abortion than Roe had allowed.
I have deep and unyielding respect for the Justices who wrote the Casey plurality opinion. And I respect the Casey plurality’s good-faith effort to locate some middle ground or compromise that could resolve this controversy for America.
But as has become increasingly evident over time,
Casey
’s
[3]
I also agree with the Court’s conclusion today with respect to reliance.
Broad notions of societal reliance have been invoked in support of
Roe
,
but the Court has not analyzed reliance in that way in the past. For
example, American businesses and workers relied on
Lochner
v.
New
York
,
two directions.
Casey
reaffirmed
Roe
’s viability line, but it expressly
overruled the
Roe
trimester framework and also expressly overruled two
landmark post- abortion cases—
Akron
v.
Akron Center for Reproduc-
tive Health
,
Inc
.,
K AVANAUGH , J., concurring
well-intentioned effort did not resolve the abortion debate.
The national division has not ended. In recent years, a sig-
nificant number of States have enacted abortion re-
strictions that directly conflict with
Roe
. Those laws cannot
be dismissed as political stunts or as outlier laws. Those
numerous state laws collectively represent the sincere and
deeply held views of tens of millions of Americans who con-
tinue to fervently believe that allowing abortions up to 24
weeks is far too radical and far too extreme, and does not
sufficiently account for what
Roe
itself recognized as the
State’s “important and legitimate interest” in protecting fe-
tal life.
In short, Casey ’s stare decisis analysis rested in part on a predictive judgment about the future development of state laws and of the people’s views on the abortion issue. But that predictive judgment has not borne out. As the Court today explains, the experience over the last 30 years con- flicts with Casey ’s predictive judgment and therefore under- mines Casey ’s precedential force.
In any event, although Casey is relevant to the stare de- cisis analysis, the question of whether to overrule Roe can- not be dictated by Casey alone. To illustrate that stare de- cisis point, consider an example. Suppose that in 1924 this Court had expressly reaffirmed Plessy v. Ferguson and up- held the States’ authority to segregate people on the basis of race. Would the Court in Brown some 30 years later in To be clear, public opposition to a prior decision is not a basis for over- ruling (or reaffirming) that decision. Rather, the question of whether to overrule a precedent must be analyzed under this Court’s traditional stare decisis factors. The only point here is that Casey adopted a special stare decisis principle with respect to Roe based on the idea of resolving the national controversy and ending the national division over abortion. The continued and significant opposition to , as reflected in the laws and positions of numerous States, is relevant to assessing on its own terms. *133 v.
K AVANAUGH , J., concurring
1954 have reaffirmed Plessy and upheld racially segregated schools simply because of that intervening 1924 precedent? Surely the answer is no.
In sum, I agree with the Court’s application today of the principles of stare decisis and its conclusion that Roe should be overruled.
III
After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abor- tion for all 330 million Americans. That issue will be re- solved by the people and their representatives in the demo- cratic process in the States or Congress. But the parties’ arguments have raised other related questions, and I ad- dress some of them here.
First
is the question of how this decision will affect other
precedents involving issues such as contraception and mar-
riage—in particular, the decisions in
Griswold
v.
Connecti-
cut
,
Second
, as I see it, some of the other abortion-related le-
gal 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. Cf.
Bouie
v.
City of
Columbia
,
Other abortion-related legal questions may emerge in the
K AVANAUGH , J., concurring
future. But this Court will no longer decide the fundamen- tal question of whether abortion must be allowed through- out the United States through 6 weeks, or 12 weeks, or 15 weeks, or 24 weeks, or some other line. The Court will no longer decide how to evaluate the interests of the pregnant woman and the interests in protecting fetal life throughout pregnancy. Instead, those difficult moral and policy ques- tions will be decided, as the Constitution dictates, by the people and their elected representatives through the consti- tutional processes of democratic self-government.
* * *
The Roe Court took sides on a consequential moral and policy issue that this Court had no constitutional authority to decide. By taking sides, the Roe Court distorted the Na- tion’s understanding of this Court’s proper role in the Amer- ican constitutional system and thereby damaged the Court as an institution. As Justice Scalia explained, Roe “de- stroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.” , 505 U. S., at 995 (opinion concurring in judgment in part and dissenting in part).
The Court’s decision today properly returns the Court to a position of judicial neutrality on the issue of abortion, and properly restores the people’s authority to resolve the issue of abortion through the processes of democratic self- government established by the Constitution.
To be sure, many Americans will disagree with the Court’s decision today. That would be true no matter how the Court decided this case. Both sides on the abortion is- sue believe sincerely and passionately in the rightness of their cause. Especially in those difficult and fraught cir- cumstances, the Court must scrupulously adhere to the Constitution’s neutral position on the issue of abortion.
Since 1973, more than 20 Justices of this Court have now
K AVANAUGH , J., concurring
grappled with the divisive issue of abortion. I greatly re- spect all of the Justices, past and present, who have done so. Amidst extraordinary controversy and challenges, all of them have addressed the abortion issue in good faith after careful deliberation, and based on their sincere understand- ings of the Constitution and of precedent. I have endeav- ored to do the same.
In my judgment, on the issue of abortion, the Constitu- tion is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neu- tral. The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abor- tion to the people and their elected representatives in the democratic process.
*136 R OBERTS , C. J., concurring R OBERTS , C. J., concurring in judgment SUPREME COURT OF THE UNITED STATES
_________________ No. 19–1392 _________________ THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL ., PETITIONERS JACKSON WOMEN’S
HEALTH ORGANIZATION, ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2022]
C HIEF J USTICE R OBERTS , concurring in the judgment.
We granted certiorari to decide one question: “Whether
all pre-viability prohibitions on elective abortions are un-
constitutional.” Pet. for Cert. i. That question is directly
implicated here: Mississippi’s Gestational Age Act, Miss.
Code Ann. §41–41–191 (2018), generally prohibits abortion
after the fifteenth week of pregnancy—several weeks before
a fetus is regarded as “viable” outside the womb. In urging
our review, Mississippi stated that its case was “an ideal
vehicle” to “reconsider the bright-line viability rule,” and
that a judgment in its favor would “not require the Court to
overturn” v.
Wade
,
Today, the Court nonetheless rules for Mississippi by do- ing just that. I would take a more measured course. I agree with the Court that the viability line established by Roe and should be discarded under a straightforward stare de- cisis analysis. That line never made any sense. Our abor- tion 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—
R OBERTS , C. J., concurring in judgment
certainly not all the way to viability. Mississippi’s law al- lows a woman three months to obtain an abortion, well be- yond the point at which it is considered “late” to discover a pregnancy. See A. Ayoola, Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing 462 (2015) (preg- nancy is discoverable and ordinarily discovered by six weeks of gestation). 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 nec- essary not to decide more. Perhaps we are not always per- fect 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 judi- cial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaf- firmed applying the doctrine of stare decisis . The Court’s opinion is thoughtful and thorough, but those virtues can- not compensate for the fact that its dramatic and conse- quential ruling is unnecessary to decide the case before us.
I
Let me begin with my agreement with the Court, on the only question we need decide here: whether to retain the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is re- garded as “viable” outside the womb. I agree that this rule should be discarded.
First, this Court seriously erred in Roe in adopting via- bility as the earliest point at which a State may legislate to advance its substantial interests in the area of abortion. See ante, at 50–53. set forth a rigid three-part frame- work anchored to viability, which more closely resembled a regulatory code than a body of constitutional law. That
R OBERTS , C. J., concurring in judgment
framework, moreover, came out of thin air. Neither the Texas statute challenged in Roe nor the Georgia statute at issue in its companion case, Doe v. Bolton , 410 U. S. 179 (1973), included any gestational age limit. No party or ami- cus asked the Court to adopt a bright line viability rule. And as for Casey , arguments for or against the viability rule played only a de minimis role in the parties’ briefing and in the oral argument. See Tr. of Oral Arg. 17–18, 51 (fleeting discussion of the viability rule).
It is thus hardly surprising that neither
Roe
nor
Casey
made a persuasive or even colorable argument for why the
time for terminating a pregnancy must extend to viability.
The Court’s jurisprudence on this issue is a textbook illus-
tration of the perils of deciding a question neither presented
nor briefed. As has been often noted,
Roe
’s defense of the
line boiled down to the circular assertion that the State’s
interest is compelling only when an unborn child can live
outside the womb, because that is when the unborn child
can live outside the womb. See
Twenty years later, the best defense of the viability line
the
Casey
plurality could conjure up was workability. See
R OBERTS , C. J., concurring in judgment
of Pregnancy Recognition and Prenatal Care Use: A Popu- lation-based Study in the United States 39 (2010) (Preg- nancy Recognition). The dissent, which would retain the viability line, offers no justification for it either.
This Court’s jurisprudence since
Casey,
moreover, has
“eroded” the “underpinnings” of the viability line, such as
they were.
United States
v.
Gaudin
, 515 U. S. 506, 521
(1995). The viability line is a relic of a time when we recog-
nized only two state interests warranting regulation of
abortion: maternal health and protection of “potential life.”
,
Consider, for example, statutes passed in a number of ju-
risdictions that forbid abortions after twenty weeks of preg-
nancy, premised on the theory that a fetus can feel pain at
that stage of development. See,
e.g.,
Ala. Code §26–23B–2
(2018). Assuming that prevention of fetal pain is a legiti-
mate state interest after
Gonzales
, there seems to be no rea-
son why viability would be relevant to the permissibility of
such laws. The same is true of laws designed to “protect[ ]
the integrity and ethics of the medical profession” and re-
strict procedures likely to “coarsen society” to the “dignity
of human life.”
Gonzales
,
R OBERTS , C. J., concurring in judgment
demeaning to the medical profession.” Miss. Code Ann. §41–41–191(2)(b)(i)(8). That procedure accounts for most abortions performed after the first trimester—two weeks before the period at issue in this case—and “involve[s] the use of surgical instruments to crush and tear the unborn child apart.” Ibid. ; see also Gonzales , 550 U. S., at 135. Again, it would make little sense to focus on viability when evaluating a law based on these permissible goals.
In short, the viability rule was created outside the ordi- nary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate. It is indeed “telling that other countries almost uniformly eschew” a viability line. Ante, at 53 (opinion of the Court). Only a handful of coun- tries, among them China and North Korea, permit elective abortions after twenty weeks; the rest have coalesced around a 12–week line. See The World’s Abortion Laws, Center for Reproductive Rights (Feb. 23, 2021) (online source archived at www.supremecourt.gov) (Canada, China, Iceland, Guinea-Bissau, the Netherlands, North Ko- rea, Singapore, and Vietnam permit elective abortions after twenty weeks). The Court rightly rejects the arbitrary via- bility rule today.
II
None of this, however, requires that we also take the dra- matic step of altogether eliminating the abortion right first recognized in Roe . Mississippi itself previously argued as much to this Court in this litigation.
When the State petitioned for our review, its basic re- quest was straightforward: “clarify whether abortion prohi- bitions before viability are always unconstitutional.” Pet. for Cert. 14. The State made a number of strong arguments that the answer is no, id. , at 15–26—arguments that, as discussed, I find persuasive. And it went out of its way to make clear that it was not asking the Court to repudiate
R OBERTS , C. J., concurring in judgment
entirely the right to choose whether to terminate a preg- nancy: “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey .” Id., at 5. Mississippi tempered that statement with an oblique one-sentence footnote intimating that, if the Court could not reconcile Roe and Casey with current facts or other cases, it “should not retain erroneous precedent.” Pet. for Cert. 5–6, n. 1. But the State never argued that we should grant review for that purpose.
After we granted certiorari, however, Mississippi changed course. In its principal brief, the State bluntly an- nounced that the Court should overrule Roe and Casey . The Constitution does not protect a right to an abortion, it ar- gued, and a State should be able to prohibit elective abor- tions if a rational basis supports doing so. See Brief for Pe- titioners 12–13.
The Court now rewards that gambit, noting three times that the parties presented “no half-measures” and argued that “we must either reaffirm or overrule Roe and .” Ante, at 5, 8, 72. Given those two options, the majority picks the latter.
This framing is not accurate. In its brief on the merits,
Mississippi in fact argued at length that a decision simply
rejecting the viability rule would result in a judgment in its
favor. See Brief for Petitioners 5, 38–48. But even if the
State had not argued as much, it would not matter. There
is no rule that parties can confine this Court to disposing of
their case on a particular ground—let alone when review
was sought and granted on a different one. Our established
practice is instead not to “formulate a rule of constitutional
law broader than is required by the precise facts to which it
is to be applied.”
Washington State Grange
v.
Washington
State Republican Party
,
R OBERTS , C. J., concurring in judgment
Following that “fundamental principle of judicial re-
straint,”
Washington State Grange
, 552 U. S., at 450, we
should begin with the narrowest basis for disposition, pro-
ceeding to consider a broader one only if necessary to re-
solve the case at hand. See,
e.g., Office of Personnel Man-
agement
v.
Richmond
,
Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: rec- ognize that the viability line must be discarded, as the ma- jority rightly does, and leave for another day whether to re- ject any right to an abortion at all. See Webster v. Reproductive Health Services , 492 U. S. 490, 518, 521 (1989) (plurality opinion) (rejecting Roe ’s viability line as “rigid” and “indeterminate,” while also finding “no occasion to revisit the holding of Roe ” that, under the Constitution, a State must provide an opportunity to choose to terminate a pregnancy).
Of course, such an approach would not be available if the
rationale of
Roe
and
Casey
was inextricably entangled with
and dependent upon the viability standard. It is not. Our
precedents in this area ground the abortion right in a
woman’s “right to choose.” See
Carey
v.
Population Services
Int’l
,
R OBERTS , C. J., concurring in judgment
omitted));
id.
, at 473–474 (
Roe
“did not declare an unquali-
fied constitutional right to an abortion,” but instead pro-
tected “the woman from unduly burdensome interference
with her freedom to decide whether to terminate her preg-
nancy” (internal quotation marks omitted));
Webster
, 492
U. S., at 520 (plurality opinion) (
Roe
protects “the claims of
a woman to decide for herself whether or not to abort a fetus
she [is] carrying”);
Gonzales
,
To be sure, in reaffirming the right to an abortion,
Casey
termed the viability rule
Roe
’s “central holding.” 505 U. S.,
at 860. Other cases of ours have repeated that language.
See,
e.g., Gonzales
,
The Court in Roe just chose to address both issues in one opinion: It first recognized a right to “choose to terminate [a] pregnancy” under the Constitution, see 410 U. S., at 129–159, and then, having done so, explained that a line should be drawn at viability such that a State could not pro- scribe abortion before that period, see id. , at 163. The via- bility line is a separate rule fleshing out the metes and bounds of ’s core holding. Applying principles of stare decisis , I would excise that additional rule—and only that
R OBERTS , C. J., concurring in judgment
rule—from our jurisprudence.
The majority lists a number of cases that have stressed the importance of the viability rule to our abortion prece- dents. See ante, at 73–74. I agree that—whether it was originally holding or dictum—the viability line is clearly part of our “past precedent,” and the Court has applied it as such in several cases since Roe . Ante, at 73. My point is that Roe adopted two distinct rules of constitutional law: one, that a woman has the right to choose to terminate a pregnancy; two, that such right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb. The latter is obviously distinct from the former. I would abandon that timing rule, but see no need in this case to consider the basic right.
The Court contends that it is impossible to address
Roe’
s
conclusion that the Constitution protects the woman’s right
to abortion, without also addressing ’s rule that the
State’s interests are not constitutionally adequate to justify
a ban on abortion until viability. See
ibid
. But we have
partially overruled precedents before, see,
e.g., United
States
v.
Miller
,
Overruling the subsidiary rule is sufficient to resolve this case in Mississippi’s favor. The law at issue allows abor- tions up through fifteen weeks, providing an adequate op- portunity to exercise the right Roe protects. By the time a pregnant woman has reached that point, her pregnancy is well into the second trimester. Pregnancy tests are now in- expensive and accurate, and a woman ordinarily discovers she is pregnant by six weeks of gestation. See A. Branum & K. Ahrens, Trends in Timing of Pregnancy Awareness Among US Women, 21 Maternal & Child Health J. 715, 722
R OBERTS , C. J., concurring in judgment
(2017). Almost all know by the end of the first trimester. Pregnancy Recognition 39. Safe and effective abortifa- cients, moreover, are now readily available, particularly during those early stages. See I. Adibi et al., Abortion, 22 Geo. J. Gender & L. 279, 303 (2021). Given all this, it is no surprise that the vast majority of abortions happen in the first trimester. See Centers for Disease Control and Pre- vention, Abortion Surveillance—United States 1 (2020). Presumably most of the remainder would also take place earlier if later abortions were not a legal option. Ample ev- idence 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. Webster , 492 U. S., at 520 (plurality opinion).*
III
Whether a precedent should be overruled is a question
“entirely within the discretion of the court.”
Hertz
v.
Wood-
man
,
*The majority contends that “nothing like [my approach] was recom-
mended by either party.”
Ante,
at 72. But as explained, Mississippi in
fact pressed a similar argument in its filings before this Court. See Pet.
for Cert. 15–26; Brief for Petitioners 5, 38–48 (urging the Court to reject
the viability rule and reverse); Reply Brief 20–22 (same). The approach
also finds support in prior opinions. See
Webster
,
R OBERTS , C. J., concurring in judgment
The Court’s decision to overrule Roe and Casey is a seri- ous 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 noth- ing more is needed to decide this case.
Our cases say that the effect of overruling a precedent on reliance interests is a factor to consider in deciding whether to take such a step, and respondents argue that generations of women have relied on the right to an abortion in organ- izing their relationships and planning their futures. Brief for Respondents 36–41; see also , 505 U. S., at 856 (making the same point). The Court questions whether these concerns are pertinent under our precedents, see ante, at 64–65, but the issue would not even arise with a decision rejecting only the viability line: It cannot reasona- bly be argued that women have shaped their lives in part on the assumption that they would be able to abort up to viability, as opposed to fifteen weeks.
In support of its holding, the Court cites three seminal
constitutional decisions that involved overruling prior prec-
edents:
Brown
v.
Board of Education
,
R OBERTS , C. J., concurring in judgment
The Court says we should consider whether to overrule Roe and Casey now, because if we delay we would be forced to consider the issue again in short order. See ante , at 76– 77. There would be “turmoil” until we did so, according to the Court, because of existing state laws with “shorter deadlines or no deadline at all.” Ante , at 76. But under the narrower approach proposed here, state laws outlawing abortion altogether would still violate binding precedent. And to the extent States have laws that set the cutoff date earlier than fifteen weeks, any litigation over that timeframe would proceed free of the distorting effect that the viability rule has had on our constitutional debate. The same could be true, for that matter, with respect to legisla- tive consideration in the States. We would then be free to exercise our discretion in deciding whether and when to take up the issue, from a more informed perspective.
* * *
Both the Court’s opinion and the dissent display a relent-
less freedom from doubt on the legal issue that I cannot
share. I am not sure, for example, that a ban on terminat-
ing a pregnancy from the moment of conception must be
treated the same under the Constitution as a ban after fif-
teen weeks. A thoughtful Member of this Court once coun-
seled that the difficulty of a question “admonishes us to ob-
serve the wise limitations on our function and to confine
ourselves to deciding only what is necessary to the disposi-
tion of the immediate case.”
Whitehouse
v.
Illinois Central
R. Co.
,
I therefore concur only in the judgment. *148 K AGAN , J., dissenting
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting SUPREME COURT OF THE UNITED STATES
_________________ No. 19–1392 _________________ THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL ., PETITIONERS JACKSON WOMEN’S
HEALTH ORGANIZATION, ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT [June 24, 2022] J USTICE B REYER , J USTICE S OTOMAYOR , and J USTICE K AGAN , dissenting.
For half a century, v.
Wade
,
Roe
and
Casey
well understood the difficulty and divisive-
ness of the abortion issue. The Court knew that Americans
hold profoundly different views about the “moral[ity]” of
“terminating a pregnancy, even in its earliest stage.”
Ca-
sey
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting State has legitimate interests from the outset of the preg- nancy in protecting” the “life of the fetus that may become a child.” Id. , at 846. So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov- ernment) thought proper, in light of all the circumstances and complexities of her own life. Ibid.
Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abor- tion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of re- strictions. The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s rul- ing, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of ferti- lization. States have already passed such laws, in anticipa- tion of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her fa- ther’s—no matter if doing so will destroy her life. So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protect- ing a woman from risk of death or physical harm. Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.
Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.
The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases. Ante , at 79. That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a pro- cedure. Above all others, women lacking financial re- sources will suffer from today’s decision. In any event, in- terstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abor- tion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the views of [an individual State’s] citizens” will not matter. Ante , at 1. The challenge for a woman will be to finance a
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting trip not to “New York [or] California” but to Toronto. Ante , at 4 (K AVANAUGH , J., concurring).
Whatever the exact scope of the coming laws, one result
of today’s decision is certain: the curtailment of women’s
rights, and of their status as free and equal citizens. Yes-
terday, the Constitution guaranteed that a woman con-
fronted with an unplanned pregnancy could (within reason-
able 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 reproduc-
tive freedom, the Constitution also protected “[t]he ability
of women to participate equally in [this Nation’s] economic
and social life.” ,
And no one should be confident that this majority is done
with its work. The right
Roe
and
Casey
recognized does not
stand alone. To the contrary, the Court has linked it for
decades to other settled freedoms involving bodily integrity,
familial relationships, and procreation. Most obviously, the
right to terminate a pregnancy arose straight out of the
right to purchase and use contraception. See
Griswold
v.
Connecticut
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting to rights of same-sex intimacy and marriage. See Lawrence v. Texas , 539 U. S. 558 (2003); Obergefell v. Hodges , 576 U. S. 644 (2015). They are all part of the same constitu- tional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that noth- ing it does “cast[s] doubt on precedents that do not concern abortion.” Ante , at 66; cf. ante , at 3 (T HOMAS , J., concurring) (advocating the overruling of Griswold , Lawrence , and Obergefell ). But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until , the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. Ante , at 32. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” Ante , at 15. So one of two things must be true. Either the major- ity does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid- 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
One piece of evidence on that score seems especially sa- lient: The majority’s cavalier approach to overturning this Court’s precedents. Stare decisis is the Latin phrase for a foundation stone of the rule of law: that things decided should stay decided unless there is a very good reason for change. It is a doctrine of judicial modesty and humility. Those qualities are not evident in today’s opinion. The ma- jority 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
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting on the availability of abortion both in structuring their re- lationships and in planning their lives. The legal frame- work Roe and Casey developed to balance the competing in- terests in this sphere has proved workable in courts across the country. No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. Indeed, the Court in Casey already found all of that to be true. Casey is a precedent about prec- edent. It reviewed the same arguments made here in sup- port of overruling Roe , and it found that doing so was not warranted. The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis , this Court has often said, “con- tributes 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.” Payne v. Ten- nessee , 501 U. S. 808, 827 (1991); Vasquez v. Hillery , 474 U. S. 254, 265 (1986). Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. We dissent.
I
We start with Roe and Casey , and with their deep connec- tions to a broad swath of this Court’s precedents. To hear the majority tell the tale, and are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation’s constitutional law. That is not true. After describing the decisions themselves, we explain how they are rooted in—and themselves led to—other rights giving individuals control over their bodies and their most personal and intimate associations. The majority does not wish to talk about these matters for obvious reasons; to do so would both ground Roe and Casey in this Court’s prec- edents and reveal the broad implications of today’s decision. But the facts will not so handily disappear. Roe and Casey were from the beginning, and are even more now, embedded
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. Those legal concepts, one might even say, have gone far toward defining what it means to be an American. For in this Nation, we do not believe that a government control- ling all private choices is compatible with a free people. So we do not (as the majority insists today) place everything within “the reach of majorities and [government] officials.” West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 638 (1943). We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public oppo- sition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own fu- tures. Or at least, we did once.
A
Some half-century ago, Roe struck down a state law mak- ing it a crime to perform an abortion unless its purpose was to save a woman’s life. The Roe Court knew it was treading on difficult and disputed ground. It understood that differ- ent people’s “experiences,” “values,” and “religious training” and beliefs led to “opposing views” about abortion. 410 U. S., at 116. But by a 7-to-2 vote, the Court held that in the earlier stages of pregnancy, that contested and contest- able choice must belong to a woman, in consultation with her family and doctor. The Court explained that a long line of precedents, “founded in the Fourteenth Amendment’s concept of personal liberty,” protected individual deci- sionmaking related to “marriage, procreation, contracep- tion, family relationships, and child rearing and education.” Id. , at 152–153 (citations omitted). For the same reasons, the Court held, the Constitution must protect “a woman’s decision whether or not to terminate her pregnancy.” Id. , at 153. The Court recognized the myriad ways bearing a child can alter the “life and future” of a woman and other
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting members of her family. Ibid. A State could not, “by adopt- ing one theory of life,” override all “rights of the pregnant woman.” Id. , at 162.
At the same time, though, the Court recognized “valid in- terest[s]” of the State “in regulating the abortion decision.” Id. , at 153. The Court noted in particular “important inter- ests” in “protecting potential life,” “maintaining medical standards,” and “safeguarding [the] health” of the woman. Id. , at 154. No “absolut[ist]” account of the woman’s right could wipe away those significant state claims. Ibid.
The Court therefore struck a balance, turning on the stage of the pregnancy at which the abortion would occur. The Court explained that early on, a woman’s choice must prevail, but that “at some point the state interests” become “dominant.” Id. , at 155. It then set some guideposts. In the first trimester of pregnancy, the State could not inter- fere at all with the decision to terminate a pregnancy. At any time after that point, the State could regulate to protect the pregnant woman’s health, such as by insisting that abortion providers and facilities meet safety requirements. And after the fetus’s viability—the point when the fetus “has the capability of meaningful life outside the mother’s womb”—the State could ban abortions, except when neces- sary to preserve the woman’s life or health. Id. , at 163–164.
In the 20 years between
Roe
and , the Court ex-
pressly reaffirmed
Roe
on two occasions, and applied it on
many more. Recognizing that “arguments [against ]
continue to be made,” we responded that the doctrine of
stare decisis
“demands respect in a society governed by the
rule of law.”
Akron
v.
Akron Center for Reproductive
Health, Inc.
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting over, enforced the constitutional principles Roe had de- clared. See, e.g. , Ohio v. Akron Center for Reproductive Health , 497 U. S. 502 (1990); Hodgson v. Minnesota , 497 U. S. 417 (1990); Simopoulos v. Virginia , 462 U. S. 506 (1983); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft , 462 U. S. 476 (1983); H. L. v. Matheson , 450 U. S. 398 (1981); Bellotti v. Baird , 443 U. S. 622 (1979); Planned Parenthood of Central Mo. v. Danforth , 428 U. S. 52 (1976).
Then, in , the Court considered the matter anew, and again upheld Roe ’s core precepts. Casey is in signifi- cant measure a precedent about the doctrine of precedent— until today, one of the Court’s most important. But we leave for later that aspect of the Court’s decision. The key thing now is the substantive aspect of the Court’s consid- ered conclusion that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” 505 U. S., at 846.
Central to that conclusion was a full-throated restate-
ment of a woman’s right to choose. Like ,
Casey
grounded that right in the Fourteenth Amendment’s guar-
antee of “liberty.” That guarantee encompasses realms of
conduct not specifically referenced in the Constitution:
“Marriage is mentioned nowhere” in that document, yet the
Court was “no doubt correct” to protect the freedom to
marry “against state interference.”
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting important in this web of precedents protecting an individ- ual’s most “personal choices” were those guaranteeing the right to contraception. Ibid. ; see id. , at 852–853. In those cases, the Court had recognized “the right of the individual” to make the vastly consequential “decision whether to bear” a child. Id. , at 851 (emphasis deleted). So too, Casey rea- soned, the liberty clause protects the decision of a woman confronting an unplanned pregnancy. Her decision about abortion was central, in the same way, to her capacity to chart her life’s course. See id. , at 853.
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. Some
Americans, the Court stated, “deem [abortion] nothing
short of an act of violence against innocent human life.” 505
U. S., at 852. And each State has an interest in “the protec-
tion of potential life”—as
Roe
itself had recognized. 505
U. S., at 871 (plurality opinion). On the one hand, that in-
terest was not conclusive. The State could not “resolve” the
“moral and spiritual” questions raised by abortion in “such
a definitive way that a woman lacks all choice in the mat-
ter.”
Id.
, at 850 (majority opinion). It could not force her to
bear the “pain” and “physical constraints” of “carr[ying] a
child to full term” when she would have chosen an early
abortion.
Id.
, at 852. But on the other hand, the State had,
as
Roe
had held, an exceptionally significant interest in dis-
allowing abortions in the later phase of a pregnancy. And
it had an ever-present interest in “ensur[ing] that the
woman’s choice is informed” and in presenting the case for
“choos[ing] childbirth over abortion.”
So Casey again struck a balance, differing from Roe ’s in only incremental ways. It retained ’s “central holding” that the State could bar abortion only after viability. 505 U. S., at 860 (majority opinion). The viability line, Casey thought, was “more workable” than any other in marking
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
the place where the woman’s liberty interest gave way to a
State’s efforts to preserve potential life.
Id.
, at 870 (plural-
ity opinion). At that point, a “second life” was capable of
“independent existence.”
Ibid.
If the woman even by then
had not acted, she lacked adequate grounds to object to “the
State’s intervention on [the developing child’s] behalf.”
Ibid.
At the same time,
Casey
decided, based on two dec-
ades of experience, that the
Roe
framework did not give
States sufficient ability to regulate abortion prior to viabil-
ity. In that period,
Casey
now made clear, the State could
regulate not only to protect the woman’s health but also to
“promot[e] prenatal life.”
We make one initial point about this analysis in light of the majority’s insistence that Roe and Casey , and we in de- fending them, are dismissive of a “State’s interest in pro- tecting prenatal life.” Ante , at 38. Nothing could get those decisions more wrong. As just described, Roe and in- voked powerful state interests in that protection, operative at every stage of the pregnancy and overriding the woman’s liberty after viability. The strength of those state interests is exactly why the Court allowed greater restrictions on the abortion right than on other rights deriving from the Four- teenth Amendment. [1] But what Roe and Casey also recog- nized—which today’s majority does not—is that a woman’s For this reason, we do not understand the majority’s view that our analogy between the right to an abortion and the rights to contraception and same-sex marriage shows that we think “[t]he Constitution does not permit the States to regard the destruction of a ‘potential life’ as a matter
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting freedom and equality are likewise involved. That fact—the presence of countervailing interests—is what made the abortion question hard, and what necessitated balancing. The majority scoffs at that idea, castigating us for “repeat- edly prais[ing] the ‘balance’ ” the two cases arrived at (with the word “balance” in scare quotes). Ante , at 38. To the majority “balance” is a dirty word, as moderation is a for- eign concept. The majority would allow States to ban abor- tion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equal- ity 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 prec- edents 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 consti- tutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Govern- ment’s).
B
The majority makes this change based on a single ques- tion: Did the reproductive right recognized in Roe and Casey of any significance.” Ante , at 38. To the contrary. The liberty interests underlying those rights are, as we will describe, quite similar. See infra , at 22–24. But only in the sphere of abortion is the state interest in pro- tecting potential life involved. So only in that sphere, as both Roe and Casey recognized, may a State impinge so far on the liberty interest (bar- ring abortion after viability and discouraging it before). The majority’s failure to understand this fairly obvious point stems from its rejection of the idea of balancing interests in this (or maybe in any) constitutional context. Cf. New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U. S. ___, ___, ___–___ (2022) (slip op., at 8, 15–17). The majority thinks that a woman has no liberty or equality interest in the decision to bear a child, so a State’s interest in protecting fetal life necessarily prevails.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting exist in “1868, the year when the Fourteenth Amendment was ratified”? Ante , at 23. 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. See
ante
, at 17.
But that turns out to be wheel-spinning. First, it is not
clear what relevance such early history should have, even
to the majority. See
New York State Rifle & Pistol Assn.,
Inc.
v.
Bruen
,
[2] See, e.g. , 1 W. Blackstone, Commentaries on the Laws of England 129–130 (7th ed. 1775) (Blackstone); E. Coke, Institutes of the Laws of England 50 (1644). See J. Mohr, Abortion in America: The Origins and Evolution of Na-
tional Policy, 1800–1900, pp. 3–4 (1978). The majority offers no evidence to the contrary—no example of a founding-era law making pre- quickening abortion a crime (except when a woman died). See ante , at 20–21. And even in the mid-19th century, more than 10 States continued to allow pre-quickening abortions. See Brief for American Historical As- sociation et al. as Amici Curiae 27, and n. 14.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
Roe
’s and ’s different treatment of early and late abor-
tions. 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 . See
ante
, at
24, 36. That is convenient for the majority, but it is window
dressing. As the same majority (plus one) just informed us,
“post-ratification adoption or acceptance of laws that are
in-
consistent
with the original meaning of the constitutional
text obviously cannot overcome or alter that text.”
New
York State Rifle & Pistol Assn., Inc.
,
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 em- phasizes over and over again. See ante , at 47 (“[T]he most important historical fact [is] how the States regulated abor- tion when the Fourteenth Amendment was adopted”); see also ante , at 5, 16, and n. 24, 23, 25, 28. If the ratifiers did not understand something as central to freedom, then nei- ther 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 there 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 per- fectly 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—
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting did not understand women as full members of the commu- nity 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 constitu- tional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of auton- omy. But that takes away nothing from the core point. 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.
Casey
itself understood this point, as will become clear.
See
infra
, at 23–24. It recollected with dismay a decision
this Court issued just five years after the Fourteenth
Amendment’s ratification, approving a State’s decision to
deny a law license to a woman and suggesting as well that
a woman had no legal status apart from her husband. See
So how is it that, as Casey said, our Constitution, read *163 B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting now, grants rights to women, though it did not in 1868? How is it that our Constitution subjects discrimination against them to heightened judicial scrutiny? How is it that our Constitution, through the Fourteenth Amendment’s lib- erty clause, guarantees access to contraception (also not le- gally protected in 1868) so that women can decide for them- selves 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. “The Found-
ers,” we recently wrote, “knew they were writing a docu-
ment designed to apply to ever-changing circumstances
over centuries.”
NLRB
v.
Noel Canning
, 573 U. S. 513,
533–534 (2014). Or in 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.
McCulloch
v.
Maryland
,
Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Four- teenth 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
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
there confronted a claim, based on
Washington
v.
Glucks-
berg
,
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,” un-
grounded in law, about the “liberty that Americans should
enjoy.”
Ante
, at 14. At least, that idea is what the majority
sometimes
tries to convey. At other times, the majority (or,
rather, most of it) tries to assure the public that it has no
designs on rights (for example, to contraception) that arose
only in the back half of the 20th century—in other words,
The majority ignores that rejection. See
ante
, at 5, 13, 36. But it is
unequivocal: The
Glucksberg
test,
Obergefell
said, “may have been ap-
propriate” in considering physician-assisted suicide, but “is inconsistent
with the approach this Court has used in discussing other fundamental
rights, including marriage and intimacy.”
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
that it is happy to pick and choose, in accord with individual
preferences. See
ante
, at 32, 66, 71–72;
ante
, at 10
(K AVANAUGH , J., concurring); but see
ante
, at 3 (T HOMAS ,
J., concurring). But that is a matter we discuss later. See
infra
, at 24–29. For now, our point is different: It is that
applications of liberty and equality can evolve while re-
maining grounded in constitutional principles, constitu-
tional 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.”
Poe
v.
Ullman
,
All that is what
Casey
understood.
Casey
explicitly re-
jected the present majority’s method. “[T]he specific prac-
tices of States at the time of the adoption of the Fourteenth
Amendment,”
Casey
stated, do not “mark[ ] the outer limits
of the substantive sphere of liberty which the Fourteenth
Amendment protects.”
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting with our law.” Id. , at 847. Why? Because the Court has “vindicated [the] principle” over and over that (no matter the sentiment in 1868) “there is a realm of personal liberty which the government may not enter”—especially relating to “bodily integrity” and “family life.” Id. , at 847, 849, 851. Casey described in detail the Court’s contraception cases. See id. , at 848–849, 851–853. It noted decisions protecting the right to marry, including to someone of another race. See id. , at 847–848 (“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference”). In reviewing decades and dec- ades of constitutional law, Casey could draw but one conclu- sion: Whatever was true in 1868, “[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade , that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” Id. , at 849.
And that conclusion still held good, until the Court’s in- tervention here. It was settled at the time of Roe , settled at the time of Casey , and settled yesterday that the Constitu- tion places limits on a State’s power to assert control over an individual’s body and most personal decisionmaking. A multitude of decisions supporting that principle led to ’s recognition and Casey ’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has em- time of the Fourteenth Amendment precludes its recognition as a consti- tutional right? Ante , at 33. It has. And indeed, it has given no other reason for overruling Roe and . Ante , at 15–16. We are not min- dreaders, but here is our best guess as to what the majority means. It says next that “[a]bortion is nothing new.” Ante , at 33. So apparently, the Fourteenth Amendment might provide protection for things wholly unknown in the 19th century; maybe one day there could be constitu- tional protection for, oh, time travel. But as to anything that was known back then (such as abortion or contraception), no such luck.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting barrassingly little to say about those precedents. It (liter- ally) rattles them off in a single paragraph; and it implies that they have nothing to do with each other, or with the right to terminate an early pregnancy. See ante , at 31–32 (asserting that recognizing a relationship among them, as addressing aspects of personal autonomy, would inelucta- bly “license fundamental rights” to illegal “drug use [and] prostitution”). But that is flat wrong. The Court’s prece- dents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.
And eliminating that right, we need to say before further describing our precedents, is not taking a “neutral” posi- tion, as J USTICE K AVANAUGH tries to argue. Ante , at 2–3, 5, 7, 11–12 (concurring opinion). His idea is that neutrality lies in giving the abortion issue to the States, where some can go one way and some another. But would he say that the Court is being “scrupulously neutral” if it allowed New York and California to ban all the guns they want? Ante , at 3. If the Court allowed some States to use unanimous juries and others not? If the Court told the States: Decide for yourselves whether to put restrictions on church attend- ance? We could go on—and in fact we will. Suppose J USTICE K AVANAUGH were to say (in line with the majority opinion) that the rights we just listed are more textually or historically grounded than the right to choose. What, then, of the right to contraception or same-sex marriage? Would it be “scrupulously neutral” for the Court to eliminate those rights too? The point of all these examples is that when it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers. And to apply that point to the case here: When the Court deci- mates a right women have held for 50 years, the Court is
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting not being “scrupulously neutral.” It is instead taking sides: against women who wish to exercise the right, and for States (like Mississippi) that want to bar them from doing so. J USTICE K AVANAUGH cannot obscure that point by ap- propriating the rhetoric of even-handedness. His position just is what it is: A brook-no-compromise refusal to recog- nize a woman’s right to choose, from the first day of a preg- nancy. And that position, as we will now show, cannot be squared with this Court’s longstanding view that women indeed have rights (whatever the state of the world in 1868) to make the most personal and consequential decisions about their bodies and their lives.
Consider first, then, the line of this Court’s cases protect-
ing “bodily integrity.” ,
Casey
recognized the “doctrinal affinity” between those
precedents and .
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
medical risk. Just as one example, an American woman is
14 times more likely to die by carrying a pregnancy to term
than by having an abortion. See
Whole Woman’s Health
v.
Hellerstedt
,
So too,
Roe
and
Casey
fit neatly into a long line of deci-
sions protecting from government intrusion a wealth of pri-
vate choices about family matters, child rearing, intimate
relationships, and procreation. See
Casey
,
And liberty may require it, this Court has repeatedly said, even when those living in 1868 would not have recog- nized the claim—because they would not have seen the per- son making it as a full-fledged member of the community. Throughout our history, the sphere of protected liberty has
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
expanded, bringing in individuals formerly excluded. In
that way, the constitutional values of liberty and equality
go hand in hand; they do not inhabit the hermetically sealed
containers the majority portrays. Compare
Obergefell
, 576
U. S., at 672–675, with
ante
, at 10–11. So before
Roe
and
Casey
, the Court expanded in successive cases those who
could claim the right to marry—though their relationships
would have been outside the law’s protection in the mid-
19th century. See,
e.g.
,
Loving
,
Casey
similarly recognized the need to extend the consti-
tutional sphere of liberty to a previously excluded group.
The Court then understood, as the majority today does not,
that the men who ratified the Fourteenth Amendment and
wrote the state laws of the time did not view women as full
and equal citizens. See
supra
, at 15. A woman then,
Casey
wrote, “had no legal existence separate from her husband.”
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting nected to reproductive rights. “The ability of women to par- ticipate equally” in the “life of the Nation”—in all its eco- nomic, social, political, and legal aspects—“has been facili- tated by their ability to control their reproductive lives.” Id. , at 856. Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them.
For much that reason,
Casey
made clear that the prece-
dents
Roe
most closely tracked were those involving contra-
ception. Over the course of three cases, the Court had held
that a right to use and gain access to contraception was part
of the Fourteenth Amendment’s guarantee of liberty. See
Griswold
,
Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting 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.) Today’s decision, the majority first says, “does not undermine” the decisions cited by Roe and Casey— the ones involving “marriage, procreation, contraception, [and] family relationships”—“in any way.” Ante , at 32; Casey , 505 U. S., at 851. Note that this first assurance does not extend to rights recognized after Roe and , and partly based on them—in particular, rights to same-sex intimacy and marriage. See supra , at 23. [6] On its later tries, though, the majority includes those too: “Nothing in this opinion should be understood to cast doubt on precedents that do not con- cern abortion.” Ante , at 66; see ante , at 71–72. That right is unique, the majority asserts, “because [abortion] termi- nates life or potential life.” Ante , at 66 (internal quotation marks omitted); see ante , at 32, 71–72. So the majority de- picts today’s decision as “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright , 321 U. S. 649, 669 (1944) (Roberts, J., dissenting). Should the audi- ence for these too-much-repeated protestations be duly sat- isfied? We think not.
The first problem with the majority’s account comes from
J USTICE T HOMAS ’s concurrence—which makes clear he is
not with the program. In saying that nothing in today’s
opinion casts doubt on non-abortion precedents, J USTICE
T HOMAS explains, he means only that they are not at issue
And note, too, that the author of the majority opinion recently joined
a statement, written by another member of the majority, lamenting that
Obergefell
deprived States of the ability “to resolve th[e] question [of
same-sex marriage] through legislation.”
Davis
v.
Ermold
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting in this very case. See ante , at 7 (“[T]his case does not pre- sent the opportunity to reject” those precedents). But he lets us know what he wants to do when they are. “[I]n fu- ture cases,” he says, “we should reconsider all of this Court’s substantive due process precedents, including Griswold , Lawrence , and Obergefell .” Ante , at 3; see also supra , at 25, and n. 6. And when we reconsider them? Then “we have a duty” to “overrul[e] these demonstrably erroneous deci- sions.” Ante , at 3. So at least one Justice is planning to use the ticket of today’s decision again and again and again.
Even placing the concurrence to the side, the assurance in today’s opinion still does not work. Or at least that is so if the majority is serious about its sole reason for overturn- ing Roe and Casey : the legal status of abortion in the 19th century. Except in the places quoted above, the state inter- est in protecting fetal life plays no part in the majority’s analysis. To the contrary, the majority takes pride in not expressing a view “about the status of the fetus.” Ante , at 65; see ante , at 32 (aligning itself with ’s and Casey ’s stance of not deciding whether life or potential life is in- volved); ante , at 38–39 (similar). The majority’s departure from Roe and Casey rests instead—and only—on whether a woman’s decision to end a pregnancy involves any Four- teenth Amendment liberty interest (against which Roe and Casey balanced the state interest in preserving fetal life). Indulge a few more words about this point. The majority had a choice of two different ways to overrule Roe and . It could claim that those cases underrated the State’s interest in fetal life. Or it could claim that they overrated a woman’s constitutional liberty interest in choosing an abortion. (Or both.) The majority here rejects the first path, and we can see why. Taking that route would have prevented the majority from claiming that it means only to leave this issue to the democratic pro- cess—that it does not have a dog in the fight. See ante , at 38–39, 65. And indeed, doing so might have suggested a revolutionary proposition: that the fetus is itself a constitutionally protected “person,” such that an abortion ban is constitutionally mandated. The majority therefore chooses the second path, arguing that the Fourteenth Amendment does *174 27
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
According to the majority, no liberty interest is present—
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 recog-
nized 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 rec-
ognized in
Griswold
to contraceptive use. For that matter,
it did not protect the right recognized in
Skinner
v.
Okla-
homa ex rel. Williamson
,
Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever rea- son, that it will go so far and no further. Scout’s honor. Still, the future significance of today’s opinion will be de- cided in the future. And law often has a way of evolving not conceive of the abortion decision as implicating liberty, because the law in the 19th century gave that choice no protection. The trouble is that the chosen path—which is, again, the solitary rationale for the Court’s decision—provides no way to distinguish between the right to choose an abortion and a range of other rights, including contraception. The majority briefly (very briefly) gestures at the idea that some stare decisis factors might play out differently with respect to these other con- stitutional rights. But the majority gives no hint as to why. And the majority’s (mis)treatment of stare decisis in this case provides little rea- son to think that the doctrine would stand as a barrier to the majority’s redoing any other decision it considered egregiously wrong. See infra , at 30–57.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
without regard to original intentions—a way of actually fol-
lowing where logic leads, rather than tolerating hard-to-
explain lines. Rights can expand in that way. Dissenting
in
Lawrence
, Justice Scalia explained why he took no com-
fort in the Court’s statement that a decision recognizing the
right to same-sex intimacy did “not involve” same-sex mar-
riage.
Consider, as our last word on this issue, contraception. The Constitution, of course, does not mention that word. And there is no historical right to contraception, of the kind the majority insists on. To the contrary, the American legal landscape in the decades after the Civil War was littered with bans on the sale of contraceptive devices. So again, there seem to be two choices. See supra , at 5, 26–27. If the majority is serious about its historical approach, then Gris- wold and its progeny are in the line of fire too. Or if it is not serious, then . . . what is the basis of today’s decision? If we had to guess, we suspect the prospects of this Court approving bans on contraception are low. But once again, the future significance of today’s opinion will be decided in the future. At the least, today’s opinion will fuel the fight to get contraception, and any other issues with a moral di- mension, out of the Fourteenth Amendment and into state *176 29
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting legislatures.
Anyway, today’s decision, taken on its own, is cata- strophic enough. As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differ- ently. It has considered fundamental constitutional princi- ples, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judg- ments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitu- tion to reflect, that the world progresses). And by doing so, it includes those excluded from that olden conversation, ra- ther than perpetuating its bounds.
As a matter of constitutional substance, the majority’s opinion has all the flaws its method would suggest. Be- cause laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Be- cause those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman—even in the first days of her preg- nancy—that she could do nothing but bear a child, it can once more impose that command. Today’s decision strips women of agency over what even the majority agrees is a As this Court has considered this case, some state legislators have begun to call for restrictions on certain forms of contraception. See I. Stevenson, After Roe Decision, Idaho Lawmakers May Consider Restricting Some Contraception, Idaho Statesman (May 10, 2022), https://www.idahostatesman.com/news/politics-government/state-politics/ article261207007.html; T. Weinberg, “Anything’s on the Table”: Missouri Legislature May Revisit Contraceptive Limits Post- , Missouri Inde- pendent (May 20, 2022), https://www.missouriindependent.com/2022/05/ 20/anythings-on-the-table-missouri-legislature-may-revisit-contraceptive- limits-post-roe/.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting contested and contestable moral issue. It forces her to carry out the State’s will, whatever the circumstances and what- ever the harm it will wreak on her and her family. In the Fourteenth Amendment’s terms, it takes away her liberty. Even before we get to stare decisis , we dissent.
II
By overruling , , and more than 20 cases reaf- firming or applying the constitutional right to abortion, the majority abandons stare decisis , a principle central to the rule of law . “ Stare decisis ” means “to stand by things de- cided.” Black’s Law Dictionary 1696 (11th ed. 2019). Black- stone called it the “established rule to abide by former prec- edents.” 1 Blackstone 69. Stare decisis “promotes the evenhanded, predictable, and consistent development of le- gal principles.” Payne , 501 U. S., at 827. It maintains a stability that allows people to order their lives under the law. See H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 568–569 (1994).
Stare decisis
also “contributes to the integrity of our con-
stitutional system of government” by ensuring that deci-
sions “are founded in the law rather than in the proclivities
of individuals.”
Vasquez
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting them.
That means the Court may not overrule a decision, even
a constitutional one, without a “special justification.”
Gam-
ble
v.
United States
,
The majority today lists some 30 of our cases as overrul- ing precedent, and argues that they support overruling Roe and Casey . But none does, as further described below and in the Appendix. See infra , at 61–66. In some, the Court only partially modified or clarified a precedent. And in the rest, the Court relied on one or more of the traditional stare decisis factors in reaching its conclusion. 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 be- cause the earlier decision was less than a decade old. (The majority is wrong when it says that we insist on a test of changed law or fact alone, although that is present in most of the cases. See ante , at 69.) None of those factors apply here: Nothing—and in particular, no significant legal or fac- tual change—supports overturning a half-century of settled law giving women control over their reproductive lives.
First, for all the reasons we have given, Roe and Casey were correct. In holding that a State could not “resolve” the debate about abortion “in such a definitive way that a woman lacks all choice in the matter,” the Court protected women’s liberty and women’s equality in a way comporting with our Fourteenth Amendment precedents. , 505
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
U. S., at 850. Contrary to the majority’s view, the legal sta-
tus of abortion in the 19th century does not weaken those
decisions. And the majority’s repeated refrain about
“usurp[ing]” state legislatures’ “power to address” a pub-
licly contested question does not help it on the key issue
here.
Ante
, at 44; see
ante
, at 1. To repeat: The point of a
right is to shield individual actions and decisions “from the
vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them
as legal principles to be applied by the courts.”
Barnette
,
In any event “[w]hether or not we . . . agree” with a prior
precedent is the beginning, not the end, of our analysis—
and the remaining “principles of
stare decisis
weigh heavily
against overruling”
Roe
and
Casey
.
Dickerson
v.
United
States
,
And indeed, the majority comes close to conceding that point. The majority barely mentions any legal or factual changes that have occurred since Roe and . It sug- gests that the two decisions are hard for courts to imple- ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.” Ante , at 70. That rule could equally spell the end of any precedent with which a bare majority of the present Court disagrees.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting So how does that approach prevent the “scale of justice” from “waver[ing] with every new judge’s opinion”? 1 Black- stone 69. It does not. It 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.
A
Contrary to the majority’s view, there is nothing unwork-
able about ’s “undue burden” standard. Its primary
focus on whether a State has placed a “substantial obstacle”
on a woman seeking an abortion is “the sort of inquiry fa-
miliar to judges across a variety of contexts.”
June Medical
Services L. L. C.
v.
Russo
,
General standards, like the undue burden standard, are
ubiquitous in the law, and particularly in constitutional ad-
judication. When called on to give effect to the Constitu-
tion’s broad principles, this Court often crafts flexible
standards that can be applied case-by-case to a myriad of
unforeseeable circumstances. See
Dickerson
, 530 U. S., at
441 (“No court laying down a general rule can possibly fore-
see the various circumstances” in which it must apply). So,
for example, the Court asks about undue or substantial bur-
dens on speech, on voting, and on interstate commerce. See,
e.g.
,
Arizona Free Enterprise Club’s Freedom Club PAC
v.
Bennett
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
work with daily in other legal spheres—like the “rule of rea-
son” in antitrust law or the “arbitrary and capricious”
standard for agency decisionmaking. See
Standard Oil Co.
of N. J.
v.
United States
,
And the undue burden standard has given rise to no un- usual difficulties. Of course, it has provoked some disagree- ment among judges. Casey knew it would: That much “is to be expected in the application of any legal standard which must accommodate life’s complexity.” 505 U. S., at 878 (plurality opinion). Which is to say: That much is to be ex- pected in the application of any legal standard. But the ma- jority vastly overstates the divisions among judges applying the standard. We count essentially two. T HE C HIEF J USTICE disagreed with other Justices in the June Medical majority about whether Casey called for weighing the ben- efits of an abortion regulation against its burdens. See 591 U. S., at ___–___ (slip op., at 6–7); ante , at 59, 60, and n. 53. [10] We agree that the June Medical difference is a dif- ference—but not one that would actually make a difference in the result of most cases (it did not in June Medical ), and not one incapable of resolution were it ever to matter. As for lower courts, there is now a one-year-old, one-to-one Cir- cuit split about how the undue burden standard applies to state laws that ban abortions for certain reasons, like fetal abnormality. See ante , at 61, and n. 57. That is about it, as far as we can see. [11] And that is not much. This Court
[10] Some lower courts then differed over which opinion in June Medical was controlling—but that is a dispute not about the undue burden stand- ard, but about the “ Marks rule,” which tells courts how to determine the precedential effects of a divided decision. The rest of the majority’s supposed splits are, shall we say, unim-
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting mostly does not even grant certiorari on one-year-old, one- to-one Circuit splits, because we know that a bit of disagree- ment is an inevitable part of our legal system. To borrow an old saying that might apply here: Not one or even a cou- ple of swallows can make the majority’s summer.
Anyone concerned about workability should consider the
majority’s substitute standard. The majority says a law
regulating or banning abortion “must be sustained if there
is a rational basis on which the legislature could have
thought that it would serve legitimate state interests.”
Ante
, at 77. And the majority lists interests like “respect
for and preservation of prenatal life,” “protection of mater-
nal health,” elimination of certain “medical procedures,”
“mitigation of fetal pain,” and others.
Ante
, at 78. This
Court will surely face critical questions about how that test
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
pressive. The majority says that lower courts have split over how to ap-
ply the undue burden standard to parental notification laws. See
ante
,
at 60, and n. 54. But that is not so. The state law upheld had an exemp-
tion for minors demonstrating adequate maturity, whereas the ones
struck down did not. Compare
Planned Parenthood of Blue Ridge
v.
Camblos
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting her to incur, before the Fourteenth Amendment’s protection of life kicks in? Suppose a patient with pulmonary hyper- tension 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, con- sistent 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? See generally L. Harris, Navigating Loss of Abortion Services—A Large Academic Medical Center Prepares for the Overturn of Roe v. Wade , 386 New England J. Med. 2061 (2022).
Finally, the majority’s ruling today invites a host of ques- tions about interstate conflicts. See supra , at 3; see gener- ally D. Cohen, G. Donley, & R. Rebouché, The New Abortion Battleground, 123 Colum. L. Rev. (forthcoming 2023), https://ssrn.com/abstract=4032931. Can a State bar women from traveling to another State to obtain an abortion? Can a State prohibit advertising out-of-state abortions or help- ing women get to out-of-state providers? Can a State inter- To take just the last, most medical treatments for miscarriage are identical to those used in abortions. See Kaiser Family Foundation (Kai- ser), G. Weigel, L. Sobel, & A. Salganicoff, Understanding Pregnancy Loss in the Context of Abortion Restrictions and Fetal Harm Laws (Dec. 4, 2019), https://www.kff.org/womens-health-policy/issue-brief/ understanding-pregnancy-loss-in-the-context-of-abortion-restrictions-and- fetal-harm-laws/. Blanket restrictions on “abortion” procedures and medications therefore may be understood to deprive women of effective treatment for miscarriages, which occur in about 10 to 30 percent of preg- nancies. See Health Affairs, J. Strasser, C. Chen, S. Rosenbaum, E. Schenk, & E. Dewhurst, Penalizing Abortion Providers Will Have Ripple Effects Across Pregnancy Care (May 3, 2022), https://www.healthaffairs. org/do/10.1377/forefront.20220503.129912/.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting fere with the mailing of drugs used for medication abor- tions? The Constitution protects travel and speech and in- terstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “interjurisdictional abortion wars.” Id. , at ___ (draft, at 1).
In short, the majority does not save judges from unwieldy tests or extricate them from the sphere of controversy. To the contrary, it discards a known, workable, and predicta- ble standard in favor of something novel and probably far more complicated. It forces the Court to wade further into hotly contested issues, including moral and philosophical ones, that the majority criticizes Roe and Casey for address- ing.
B
When overruling constitutional precedent, the Court has
almost always pointed to major legal or factual changes un-
dermining a decision’s original basis. A review of the Ap-
pendix to this dissent proves the point. See
infra
, at 61–66.
Most “successful proponent[s] of overruling precedent,” this
Court once said, have carried “the heavy burden of persuad-
ing the Court that changes in society or in the law dictate
that the values served by
stare decisis
yield in favor of a
greater objective.”
Vasquez
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting decades: Conflict over abortion is not a change but a con- stant. (And as we will later discuss, the presence of that continuing division provides more of a reason to stick with, than to jettison, existing precedent. See infra , at 55–57.) In the end, the majority throws longstanding precedent to the winds without showing that anything significant has changed to justify its radical reshaping of the law. See ante , at 43.
Subsequent legal developments have only reinforced
Roe
and
Casey
. The Court has continued to embrace all the de-
cisions
Roe
and
Casey
cited, decisions which recognize a
constitutional right for an individual to make her own
choices about “intimate relationships, the family,” and con-
traception.
Casey
,
Moreover, no subsequent factual developments have un- dermined Roe and . Women continue to experience unplanned pregnancies and unexpected developments in pregnancies. Pregnancies continue to have enormous phys- ical, social, and economic consequences. Even an uncompli-
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting cated pregnancy imposes significant strain on the body, un- avoidably involving significant physiological change and ex- cruciating pain. For some women, pregnancy and child- birth can mean life-altering physical ailments or even death. Today, as noted earlier, the risks of carrying a preg- nancy to term dwarf those of having an abortion. See supra , at 22. Experts estimate that a ban on abortions increases maternal mortality by 21 percent, with white women facing a 13 percent increase in maternal mortality while black women face a 33 percent increase. [13] Pregnancy and child- birth may also impose large-scale financial costs. The ma- jority briefly refers to arguments about changes in laws re- lating to healthcare coverage, pregnancy discrimination, and family leave. See ante , at 33–34. Many women, how- ever, still do not have adequate healthcare coverage before and after pregnancy; and, even when insurance coverage is available, healthcare services may be far away. [14] Women also continue to face pregnancy discrimination that inter- feres with their ability to earn a living. Paid family leave remains inaccessible to many who need it most. Only 20 percent of private-sector workers have access to paid family leave, including a mere 8 percent of workers in the bottom
[13] See L. Harris, Navigating Loss of Abortion Services—A Large Aca- demic Medical Center Prepares for the Overturn of Roe v. Wade , 386 New England J. Med. 2061, 2063 (2022). This projected racial disparity re- flects existing differences in maternal mortality rates for black and white women. Black women are now three to four times more likely to die dur- ing or after childbirth than white women, often from preventable causes. See Brief for Howard University School of Law Human and Civil Rights Clinic as Amicus Curiae 18. See Centers for Medicare and Medicaid Services, Issue Brief: Im-
proving Access to Maternal Health Care in Rural Communities 4, 8, 11 (Sept. 2019), https://www.cms.gov/About-CMS/Agency-Information/ OMH/equity-initiatives/rural-health/09032019-Maternal-Health-Care-in- Rural-Communities.pdf. In Mississippi, for instance, 19 percent of women of reproductive age are uninsured and 60 percent of counties lack a single obstetrician-gynecologist. Brief for Lawyers’ Committee for Civil Rights Under Law et al. as Amici Curiae 12–13.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting quartile of wage earners. [15]
The majority briefly notes the growing prevalence of safe haven laws and demand for adoption, see ante , at 34, and nn. 45–46, but, to the degree that these are changes at all, they too are irrelevant. [16] Neither reduces the health risks or financial costs of going through pregnancy and child- birth. Moreover, the choice to give up parental rights after giving birth is altogether different from the choice not to carry a pregnancy to term. The reality is that few women denied an abortion will choose adoption. [17] The vast major- ity will continue, just as in Roe and ’s time, to shoul- der the costs of childrearing. Whether or not they choose to parent, they will experience the profound loss of autonomy and dignity that coerced pregnancy and birth always im- pose.
[15] Dept. of Labor, National Compensation Survey: Employee Benefits in the United States, Table 31 (Sept. 2020), https://www.bls.gov/ncs/ebs/ benefits/2020/employee-benefits-in-the-united-states-march-2020.pdf# page=299.
[16] Safe haven laws, which allow parents to leave newborn babies in des- ignated safe spaces without threat of prosecution, were not enacted as an alternative to abortion, but in response to rare situations in which birthing mothers in crisis would kill their newborns or leave them to die. See Centers for Disease Control and Prevention (CDC), R. Wilson, J. Klevens, D. Williams, & L. Xu, Infant Homicides Within the Context of Safe Haven Laws—United States, 2008–2017, 69 Morbidity and Mortal- ity Weekly Report 1385 (2020).
[17] A study of women who sought an abortion but were denied one be- cause of gestational limits found that only 9 percent put the child up for adoption, rather than parenting themselves. See G. Sisson, L. Ralph, H. Gould, & D. Foster, Adoption Decision Making Among Women Seeking Abortion, 27 Women’s Health Issues 136, 139 (2017). The majority finally notes the claim that “people now have a new
appreciation of fetal life,” partly because of viewing sonogram images. Ante , at 34. It is hard to know how anyone would evaluate such a claim and as we have described above, the majority’s reasoning does not rely on any reevaluation of the interest in protecting fetal life. See supra , at 26, and n. 7. It is worth noting that sonograms became widely used in
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting Mississippi’s own record illustrates how little facts on the ground have changed since Roe and Casey , notwithstanding the majority’s supposed “modern developments.” Ante , at 33. Sixty-two percent of pregnancies in Mississippi are un- planned, yet Mississippi does not require insurance to cover contraceptives and prohibits educators from demonstrating proper contraceptive use. [19] The State neither bans preg- nancy discrimination nor requires provision of paid paren- tal leave. Brief for Yale Law School Information Society Project as Amicus Curiae 13 (Brief for Yale Law School); Brief for National Women’s Law Center et al. as Amici Cu- riae 32. It has strict eligibility requirements for Medicaid and nutrition assistance, leaving many women and families without basic medical care or enough food. See Brief for 547 Deans, Chairs, Scholars and Public Health Professionals et al. as Amici Curiae 32–34 (Brief for 547 Deans). Alt- hough 86 percent of pregnancy-related deaths in the State are due to postpartum complications, Mississippi rejected federal funding to provide a year’s worth of Medicaid cover- age to women after giving birth. See Brief for Yale Law School 12–13. Perhaps unsurprisingly, health outcomes in Mississippi are abysmal for both women and children. Mis- sissippi has the highest infant mortality rate in the country, the 1970s, long before . Today, 60 percent of women seeking abor- tions have at least one child, and one-third have two or more. See CDC, K. Kortsmit et al., Abortion Surveillance—United States, 2019, 70 Mor- bidity and Mortality Weekly Report 6 (2021). These women know, even as they choose to have an abortion, what it is to look at a sonogram image and to value a fetal life. Guttmacher Institute, K. Kost, Unintended Pregnancy Rates at the
State Level: Estimates for 2010 and Trends Since 2002, Table 1 (2015), https://www.guttmacher.org/sites/default/files/report_pdf/stateup10.pdf; Kaiser, State Requirements for Insurance Coverage of Contraceptives (May 1, 2022), https://www.kff.org/state-category/womens-health/family- planning; Miss. Code Ann. §37–13–171(2)(d) (Cum. Supp. 2021) (“In no case shall the instruction or program include any demonstration of how condoms or other contraceptives are applied”).
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting and some of the highest rates for preterm birth, low birth- weight, cesarean section, and maternal death. [20] It is ap- proximately 75 times more dangerous for a woman in the State to carry a pregnancy to term than to have an abortion. See Brief for 547 Deans 9–10. We do not say that every State is Mississippi, and we are sure some have made gains since Roe and Casey in providing support for women and children. But a state-by-state analysis by public health pro- fessionals shows that States with the most restrictive abor- tion policies also continue to invest the least in women’s and children’s health. See Brief for 547 Deans 23–34.
The only notable change we can see since Roe and Casey cuts in favor of adhering to precedent: It is that American abortion law has become more and more aligned with other nations. The majority, like the Mississippi Legislature, claims that the United States is an extreme outlier when it comes to abortion regulation. See ante , at 6, and n. 15. The global trend, however, has been toward increased provision of legal and safe abortion care. A number of countries, in- cluding New Zealand, the Netherlands, and Iceland, permit abortions up to a roughly similar time as Roe and Casey set. See Brief for International and Comparative Legal Scholars as Amici Curiae 18–22. Canada has decriminalized abor- tion at any point in a pregnancy. See id. , at 13–15. Most Western European countries impose restrictions on abor- See CDC, Infant Mortality Rates by State (Mar. 3, 2022), https://www.cdc.gov/nchs/pressroom/sosmap/infant_mortality_rates/infant _mortality.htm; Mississippi State Dept. of Health, Infant Mortality Re- port 2019 & 2020, pp. 18–19 (2021), https://www.msdh.ms.gov/ msdhsite/_static/resources/18752.pdf; CDC, Percentage of Babies Born Low Birthweight by State (Feb. 25, 2022), https://www.cdc.gov/ nchs/pressroom/sosmap/lbw_births/lbw.htm; CDC, Cesarean Delivery Rate by State (Feb. 25, 2022), https://www.cdc.gov/nchs/pressroom/ sosmap/cesarean_births/cesareans.htm; Mississippi State Dept. of Health, Mississippi Maternal Mortality Report 2013–2016, pp. 5, 25 (Mar. 2021), https://www.msdh.ms.gov/msdhsite/_static/resources/8127.pdf. *190 43
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting tion after 12 to 14 weeks, but they often have liberal excep- tions to those time limits, including to prevent harm to a woman’s physical or mental health. See id. , at 24–27; Brief for European Law Professors as Amici Curiae 16–17, Ap- pendix. They also typically make access to early abortion easier, for example, by helping cover its cost. [21] Perhaps most notable, more than 50 countries around the world—in Asia, Latin America, Africa, and Europe—have expanded access to abortion in the past 25 years. See Brief for Inter- national and Comparative Legal Scholars as Amici Curiae 28–29. In light of that worldwide liberalization of abortion laws, it is American States that will become international outliers after today.
In sum, the majority can point to neither legal nor factual developments in support of its decision. Nothing that has happened in this country or the world in recent decades un- dermines the core insight of Roe and . It continues to be true that, within the constraints those decisions estab- lished, a woman, not the government, should choose whether she will bear the burdens of pregnancy, childbirth, and parenting.
In support of its holding, see
ante
, at 40, the majority in-
vokes two watershed cases overruling prior constitutional
precedents:
West Coast Hotel Co.
v.
Parrish
and
Brown
v.
Board of Education
. But those decisions, unlike today’s, re-
sponded to changed law and to changed facts and attitudes
that had taken hold throughout society. As
Casey
recog-
nized, the two cases are relevant only to show—by stark
contrast—how unjustified overturning the right to choose
is. See
West Coast Hotel overruled Adkins v. Children’s Hospital See D. Grossman, K. Grindlay, & B. Burns, Public Funding for Abor- tion Where Broadly Legal, 94 Contraception 451, 458 (2016) (discussing funding of abortion in European countries).
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
of D. C.
,
Brown
v.
Board of Education
overruled
Plessy
v.
Fergu-
son
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting was not, and could not ever be, consistent with the Recon- struction Amendments, ratified to give the former slaves full citizenship. Whatever might have been thought in Plessy ’s time, the Brown Court explained, both experience and “modern authority” showed the “detrimental effect[s]” of state-sanctioned segregation: It “affect[ed] [children’s] hearts and minds in a way unlikely ever to be undone.” 347 U. S., at 494. By that point, too, the law had begun to re- flect that understanding. In a series of decisions, the Court had held unconstitutional public graduate schools’ exclu- sion of black students. See, e.g. , Sweatt v. Painter , 339 U. S. 629 (1950); Sipuel v. Board of Regents of Univ. of Okla. , 332 U. S. 631 (1948) ( per curiam ); Missouri ex rel. Gaines v. Canada , 305 U. S. 337 (1938). The logic of those cases, Brown held, “appl[ied] with added force to children in grade and high schools.” 347 U. S., at 494. Changed facts and changed law required Plessy ’s end.
The majority says that in recognizing those changes, we are implicitly supporting the half-century interlude be- tween Plessy and Brown . See ante , at 70. That is not so. First, if the Brown Court had used the majority’s method of constitutional construction, it might not ever have over- ruled Plessy , whether 5 or 50 or 500 years later. Brown thought that whether the ratification-era history supported desegregation was “[a]t best . . . inconclusive.” 347 U. S., at 489. But even setting that aside, we are not saying that a decision can never be overruled just because it is terribly wrong. Take West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, which the majority also relies on. See ante , at 40–41, 70. That overruling took place just three years after the initial decision, before any notable reliance interests had developed. It happened as well because individual Justices changed their minds, not because a new majority wanted to undo the decisions of their predecessors. Both Barnette and Brown , moreover, share another feature setting them apart from the Court’s ruling today. They protected individual
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting rights with a strong basis in the Constitution’s most funda- mental commitments; they did not, as the majority does here, take away a right that individuals have held, and re- lied on, for 50 years. To take that action based on a new and bare majority’s declaration that two Courts got the re- sult egregiously wrong? And to justify that action by refer- ence to Barnette ? Or to Brown —a case in which the Chief Justice also wrote an (11-page) opinion in which the entire Court could speak with one voice? These questions answer themselves.
Casey
itself addressed both
West Coast Hotel
and
Brown
,
and found that neither supported
Roe
’s overruling. In
West
Coast Hotel
,
Casey
explained, “the facts of economic life”
had proved “different from those previously assumed.” 505
U. S., at 862. And even though “
Plessy
was wrong the day
it was decided,” the passage of time had made that ever
more clear to ever more citizens: “Society’s understanding
of the facts” in 1954 was “fundamentally different” than in
1896.
Id.
, at 863. So the Court needed to reverse course.
“In constitutional adjudication as elsewhere in life, changed
circumstances may impose new obligations.”
Id.
, at 864.
And because such dramatic change had occurred, the public
could understand why the Court was acting. “[T]he Nation
could accept each decision” as a “response to the Court’s
constitutional duty.”
Ibid
. But that would not be true of a
reversal of
Roe
—“[b]ecause neither the factual underpin-
nings of
Roe
’s central holding nor our understanding of it
has changed.”
That is just as much so today, because Roe and Casey con- tinue to reflect, not diverge from, broad trends in American society. It is, of course, true that many Americans, includ- ing many women, opposed those decisions when issued and do so now as well. Yet the fact remains: Roe and were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. Only a dozen years before , the Court described women as “the center
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
of home and family life,” with “special responsibilities” that
precluded their full legal status under the Constitution.
Hoyt
v.
Florida
,
C
The reasons for retaining
Roe
and
Casey
gain further
strength from the overwhelming reliance interests those
decisions have created. The Court adheres to precedent not
just for institutional reasons, but because it recognizes that
stability in the law is “an essential thread in the mantle of
protection that the law affords the individual.”
Florida
Dept. of Health and Rehabilitative Servs.
v.
Florida Nurs-
ing Home Assn.
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting its ruling will affect women. Ante , at 37. By characteriz- ing Casey ’s reliance arguments as “generalized assertions about the national psyche,” ante , at 64, it reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.
In Casey , the Court observed that for two decades indi- viduals “have organized intimate relationships and made” significant life choices “in reliance on the availability of abortion in the event that contraception should fail.” 505 U. S., at 856. Over another 30 years, that reliance has so- lidified. 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.” Ibid. ; see supra , at 23– 24. Indeed, all women now of childbearing age have grown up expecting that they would be able to avail themselves of ’s and ’s protections.
The disruption of overturning Roe and Casey will there- fore be profound. Abortion is a common medical procedure and a familiar experience in women’s lives. About 18 per- cent of pregnancies in this country end in abortion, and about one quarter of American women will have an abortion before the age of 45. [22] Those numbers reflect the predicta- ble and life-changing effects of carrying a pregnancy, giving birth, and becoming a parent. As Casey understood, people today rely on their ability to control and time pregnancies when making countless life decisions: where to live, whether and how to invest in education or careers, how to allocate financial resources, and how to approach intimate and family relationships. Women may count on abortion access for when contraception fails. They may count on abortion access for when contraception cannot be used, for See CDC, K. Kortsmit et al., Abortion Surveillance—United States, 2019, 70 Morbidity and Mortality Weekly Report 7 (2021); Brief for American College of Obstetricians and Gynecologists et al. as Amici Cu- riae 9. *196 49
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting example, if they were raped. They may count on abortion for when something changes in the midst of a pregnancy, whether it involves family or financial circumstances, un- anticipated medical complications, or heartbreaking fetal diagnoses. Taking away the right to abortion, as the ma- jority does today, destroys all those individual plans and ex- pectations. In so doing, it diminishes women’s opportuni- ties to participate fully and equally in the Nation’s political, social, and economic life. See Brief for Economists as Amici Curiae 13 (showing that abortion availability has “large ef- fects on women’s education, labor force participation, occu- pations, and earnings” (footnotes omitted)).
The majority’s response to these obvious points exists far
from the reality American women actually live. The major-
ity proclaims that “ ‘reproductive planning could take virtu-
ally immediate account of any sudden restoration of state
authority to ban abortions.’ ”
Ante
, at 64 (quoting ,
[23] Astoundingly, the majority casts this statement as a “conce[ssion]” from Casey with which it “agree[s].” Ante , at 64. In fact, Casey used this language as part of describing an argument that it rejected . See 505 U. S., at 856. It is only today’s Court that endorses this profoundly mis- taken view. See Brief for 547 Deans 6–7 (noting that 51 percent of women who
terminated their pregnancies reported using contraceptives during the month in which they conceived); Brief for Lawyers’ Committee for Civil Rights Under Law et al. as Amici Curiae 12–14 (explaining financial and geographic barriers to access to effective contraceptives).
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting majority ignores, as explained above, that some women de- cide to have an abortion because their circumstances change during a pregnancy. See supra , at 49. Human bod- ies care little for hopes and plans. Events can occur after conception, from unexpected medical risks to changes in family circumstances, which profoundly alter what it means to carry a pregnancy to term. In all these situations, women have expected that they will get to decide, perhaps in consultation with their families or doctors but free from state interference, whether to continue a pregnancy. For those who will now have to undergo that pregnancy, the loss of Roe and Casey could be disastrous.
That is especially so for women without money. When we
“count[ ] the cost of [ ’s] repudiation” on women who once
relied on that decision, it is not hard to see where the great-
est burden will fall. ,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting Even with ’s protection, these women face immense ob- stacles to raising the money needed to obtain abortion care early in their pregnancy. See Brief for Abortion Funds 7– 12. [26] After today, in States where legal abortions are not available, they will lose any ability to obtain safe, legal abortion care. They will not have the money to make the trip necessary; or to obtain childcare for that time; or to take time off work. Many will endure the costs and risks of pregnancy and giving birth against their wishes. Others will turn in desperation to illegal and unsafe abortions. They may lose not just their freedom, but their lives.
Finally, the expectation of reproductive control is integral
to many women’s identity and their place in the Nation.
See ,
[26] The average cost of a first-trimester abortion is about $500. See Brief for Abortion Funds 7. Federal insurance generally does not cover the cost of abortion, and 35 percent of American adults do not have cash on hand to cover an unexpected expense that high. Guttmacher Institute, M. Donovan, In Real Life: Federal Restrictions on Abortion Coverage and the Women They Impact (Jan. 5, 2017), https://www. guttmacher.org/gpr/2017/01/real-life-federal-restrictions-abortion-coverage- and-women-they-impact#:~:text=Although%20the%20Hyde%20Amendment% 20bars,provide%20abortion%20coverage%20to%20enrollees; Brief for Abortion Funds 11. Mississippi is likely to be one of the States where these costs are
highest, though history shows that it will have company. As described above, Mississippi provides only the barest financial support to pregnant women. See supra , at 41–42. The State will greatly restrict abortion care without addressing any of the financial, health, and family needs that motivate many women to seek it. The effects will be felt most se- verely, as they always have been, on the bodies of the poor. The history of state abortion restrictions is a history of heavy costs exacted from the most vulnerable women. It is a history of women seeking illegal abor- tions in hotel rooms and home kitchens; of women trying to self-induce abortions by douching with bleach, injecting lye, and penetrating them- selves with knitting needles, scissors, and coat hangers. See L. Reagan, When Abortion Was a Crime 42–43, 198–199, 208–209 (1997). It is a history of women dying.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
a woman as an “equal citizen[ ],” with all the rights, privi-
leges, and obligations that status entails.
Gonzales
, 550
U. S., at 172 (Ginsburg, J., dissenting); see
supra
, at 23–24.
It reflects that she is an autonomous person, and that soci-
ety and the law recognize her as such. Like many constitu-
tional rights, the right to choose situates a woman in rela-
tionship to others and to the government. It helps define a
sphere of freedom, in which a person has the capacity to
make choices free of government control. As
Casey
recog-
nized, the right “order[s]” her “thinking” as well as her “liv-
ing.”
Withdrawing a woman’s right to choose whether to con- tinue a pregnancy does not mean that no choice is being made. It means that a majority of today’s Court has wrenched this choice from women and given it to the States. To allow a State to exert control over one of “the most inti- mate and personal choices” a woman may make is not only to affect the course of her life, monumental as those effects might be. Id. , at 851. It is to alter her “views of [herself]” and her understanding of her “place[ ] in society” as some- one with the recognized dignity and authority to make these choices. Id. , at 856. Women have relied on Roe and Casey in this way for 50 years. Many have never known anything else. When Roe and Casey disappear, the loss of power, control, and dignity will be immense.
The Court’s failure to perceive the whole swath of expec- tations Roe and Casey created reflects an impoverished view of reliance. According to the majority, a reliance in- terest must be “very concrete,” like those involving “prop- erty” or “contract.” Ante , at 64. While many of this Court’s cases addressing reliance have been in the “commercial con- text,” , 505 U. S., at 855, none holds that interests must be analogous to commercial ones to warrant stare de-
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting cisis protection. [28] This unprecedented assertion is, at bot- tom, a radical claim to power. By disclaiming any need to consider broad swaths of individuals’ interests, the Court arrogates to itself the authority to overrule established le- gal principles without even acknowledging the costs of its decisions for the individuals who live under the law, costs that this Court’s stare decisis doctrine instructs us to privi- lege when deciding whether to change course.
The majority claims that the reliance interests women
have in
Roe
and
Casey
are too “intangible” for the Court to
consider, even if it were inclined to do so.
Ante
, at 65. This
is to ignore as judges what we know as men and women.
The interests women have in
Roe
and
Casey
are perfectly,
viscerally concrete. Countless women will now make differ-
ent decisions about careers, education, relationships, and
whether to try to become pregnant than they would have
when
Roe
served as a backstop. Other women will carry
pregnancies to term, with all the costs and risk of harm that
involves, when they would previously have chosen to obtain
an abortion. For millions of women,
Roe
and
Casey
have
been critical in giving them control of their bodies and their
lives. Closing our eyes to the suffering today’s decision will
impose will not make that suffering disappear. The major-
ity cannot escape its obligation to “count[ ] the cost[s]” of its
decision by invoking the “conflicting arguments” of “con-
tending sides.” ,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting not on those who have disavowed it. See , 505 U. S., at 855.
More broadly, the majority’s approach to reliance cannot be reconciled with our Nation’s understanding of constitu- tional rights. The majority’s insistence on a “concrete,” eco- nomic showing would preclude a finding of reliance on a wide variety of decisions recognizing constitutional rights— such as the right to express opinions, or choose whom to marry, or decide how to educate children. The Court, on the majority’s logic, could transfer those choices to the State without having to consider a person’s settled understanding that the law makes them hers. That must be wrong. All those rights, like the right to obtain an abortion, profoundly affect and, indeed, anchor individual lives. To recognize that people have relied on these rights is not to dabble in abstractions, but to acknowledge some of the most “con- crete” and familiar aspects of human life and liberty. Ante , at 64.
All those rights, like the one here, also have a societal di-
mension, because of the role constitutional liberties play in
our structure of government. See,
e.g.
,
Dickerson
, 530 U. S.,
at 443 (recognizing that
Miranda
“warnings have become
part of our national culture” in declining to overrule
Mi-
randa
v.
Arizona
,
After today, young women will come of age with fewer *202 B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting rights than their mothers and grandmothers had. The ma- jority accomplishes that result without so much as consid- ering how women have relied on the right to choose or what it means to take that right away. The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.
D
One last consideration counsels against the majority’s
ruling: the very controversy surrounding
Roe
and
Casey
.
The majority accuses
Casey
of acting outside the bounds of
the law to quell the conflict over abortion—of imposing an
unprincipled “settlement” of the issue in an effort to end
“national division.”
Ante
, at 67. But that is not what
Casey
did. As shown above,
Casey
applied traditional principles
of
stare decisis
—which the majority today ignores—in reaf-
firming
Roe
.
Casey
carefully assessed changed circum-
stances (none) and reliance interests (profound). It consid-
ered every aspect of how
Roe
’s framework operated. It
adhered to the law in its analysis, and it reached the con-
clusion that the law required. True enough that
Casey
took
notice of the “national controversy” about abortion: The
Court knew in 1992, as it did in 1973, that abortion was a
“divisive issue.”
Casey
,
Consider how the majority itself summarizes this aspect of :
“The American people’s belief in the rule of law would
be shaken if they lost respect for this Court as an insti-
tution that decides important cases based on principle,
not ‘social and political pressures.’ There is a special
*203
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
danger that the public will perceive a decision as hav-
ing been made for unprincipled reasons when the Court
overrules a controversial ‘watershed’ decision, such as
. A decision overruling
Roe
would be perceived as
having been made ‘under fire’ and as a ‘surrender to
political pressure.’ ”
Ante
, at 66–67 (citations omitted).
That seems to us a good description. And it seems to us
right. The majority responds (if we understand it correctly):
well, yes, but we have to apply the law. See
ante
, at 67. To
which
Casey
would have said: That is exactly the point.
Here, more than anywhere, the Court needs to apply the
law—particularly the law of
stare decisis
. Here, we know
that citizens will continue to contest the Court’s decision,
because “[m]en and women of good conscience” deeply disa-
gree about abortion.
Casey
,
“The promise of constancy, once given” in so charged an environment, Casey explained, “binds its maker for as long as” the “understanding of the issue has not changed so fun- damentally as to render the commitment obsolete.” Id. , at 868. A breach of that promise is “nothing less than a breach of faith.” Ibid. “[A]nd no Court that broke its faith with the people could sensibly expect credit for principle.” Ibid. No Court breaking its faith in that way would deserve credit for principle. As one of ’s authors wrote in another case, “Our legitimacy requires, above all, that we adhere to stare decisis ” in “sensitive political contexts” where “partisan controversy abounds.” Bush v. Vera , 517 U. S. 952, 985 (1996) (opinion of O’Connor, J.).
Justice Jackson once called a decision he dissented from
a “loaded weapon,” ready to hand for improper uses.
Kore-
matsu
v.
United States
,
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting that today’s decision, departing from stare decisis for no le- gitimate 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, weak- ening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal princi- ple. It makes the Court appear not restrained but aggres- sive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.
III
“Power, not reason, is the new currency of this Court’s decisionmaking.” Payne , 501 U. S., at 844 (Marshall, J., dissenting). Roe has stood for fifty years. Casey , a prece- dent about precedent specifically confirming , has stood for thirty. And the doctrine of stare decisis —a critical ele- ment of the rule of law—stands foursquare behind their continued existence. The right those decisions established and preserved is embedded in our constitutional law, both originating in and leading to other rights protecting bodily integrity, personal autonomy, and family relationships. The abortion right is also embedded in the lives of women— shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality. Since the right’s recognition (and affirmation), nothing has changed to support what the majority does today. Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this Court.
Mississippi—and other States too—knew exactly what they were doing in ginning up new legal challenges to Roe and . The 15-week ban at issue here was enacted in 2018. Other States quickly followed: Between 2019 and 2021, eight States banned abortion procedures after six to
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting eight weeks of pregnancy, and three States enacted all-out bans. [29] Mississippi itself decided in 2019 that it had not gone far enough: The year after enacting the law under re- view, the State passed a 6-week restriction. A state senator who championed both Mississippi laws said the obvious out loud. “[A] lot of people thought,” he explained, that “finally, we have” a conservative Court “and so now would be a good time to start testing the limits of .” [30] In its petition for certiorari, the State had exercised a smidgen of restraint. It had urged the Court merely to roll back Roe and Casey , specifically assuring the Court that “the questions pre- sented in this petition do not require the Court to overturn” those precedents. Pet. for Cert. 5; see ante , at 5–6 (R OBERTS , C. J., concurring in judgment). But as Missis- sippi grew ever more confident in its prospects, it resolved to go all in. It urged the Court to overrule Roe and . Nothing but everything would be enough.
Earlier this Term, this Court signaled that Mississippi’s stratagem would succeed. Texas was one of the fistful of States to have recently banned abortions after six weeks of pregnancy. It added to that “flagrantly unconstitutional” restriction an unprecedented scheme to “evade judicial
[29] Guttmacher Institute, E. Nash, State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century (Dec. 16, 2021), https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst- year-abortion-rights-almost-half-century; Guttmacher Institute, E. Nash, L. Mohammed, O. Cappello, & S. Naide, State Policy Trends 2020: Reproductive Health and Rights in a Year Like No Other (Dec. 15, 2020), https://www.guttmacher.org/article/2020/12/state-policy-trends-2020- reproductive-health-and-rights-year-no-other; Guttmacher Institute, E. Nash, L. Mohammed, O. Cappello, & S. Naide, State Policy Trends 2019: A Wave of Abortion Bans, But Some States Are Fighting Back (Dec. 10, 2019), https://www.guttmacher.org/article/2019/12/state-policy-trends- 2019-wave-abortion-bans-some-states-are-fighting-back. A. Pittman, Mississippi’s Six-Week Abortion Ban at 5th Circuit Ap-
peals Court Today, Jackson Free Press (Oct. 7, 2019), https://www. jacksonfreepress.com/news/2019/oct/07/mississippis-six-week-abortion-ban- 5th-circuit-app/.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
scrutiny.”
Whole Woman’s Health
v.
Jackson
,
And now the other shoe drops, courtesy of that same five- person majority. (We believe that T HE C HIEF J USTICE ’s opinion is wrong too, but no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing States to prohibit abor- tion from the time of conception.) Now a new and bare ma- jority 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 into a decision greenlighting even total abortion bans. See ante , at 57, 59, 63, and nn. 61–64 (relying on for- mer dissents). 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 jeop- ardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legit- imacy.
Casey
itself made the last point in explaining why it
would not overrule —though some members of its ma-
jority might not have joined
Roe
in the first instance. Just
as we did here,
Casey
explained the importance of
stare de-
cisis
; the inappositeness of
West Coast Hotel
and
Brown
; the
absence of any “changed circumstances” (or other reason)
justifying the reversal of precedent.
B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting explained that to do so—to reverse prior law “upon a ground no firmer than a change in [the Court’s] membership”— would invite the view that “this institution is little different from the two political branches of the Government.” Ibid. No view, Casey thought, could do “more lasting injury to this Court and to the system of law which it is our abiding mission to serve.” Ibid. For overruling , Casey con- cluded, the Court would pay a “terrible price.” 505 U. S., at 864.
The Justices who wrote those words—O’Connor, Ken- nedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.
They knew that “the legitimacy of the Court [is] earned over time.” Id. , at 868. They also would have recognized that it can be destroyed much more quickly. They worked hard to avert that outcome in Casey . The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adher- ing to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. Id. , at 864. It is hard—no, it is impossible—to conclude that anything else has happened here. One of us once said that “[i]t is not often in the law that so few have so quickly changed so much.” S. Breyer, Breaking the Promise of Brown : The Resegregation of America’s Schools 30 (2022). For all of us, in our time on this Court, that has never been more true than today. In overruling Roe and , this Court betrays its guiding principles.
With sorrow—for this Court, but more, for the many mil- lions of American women who have today lost a fundamen- tal constitutional protection—we dissent. *208 B REYER , S OTOMAYOR , and K AGAN , JJ., dissenting
Appendix to opinion of B REYER , S OTOMAYOR , and K AGAN , JJ.
APPENDIX
This Appendix analyzes in full each of the 28 cases the majority says support today’s decision to overrule Roe v. Wade , 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. , 505 U. S. 833 (1992). As ex- plained herein, the Court in each case relied on traditional stare decisis factors in overruling.
A great many of the overrulings the majority cites involve
a prior precedent that had been rendered out of step with
or effectively abrogated by contemporary case law in light
of intervening developments in the broader doctrine. See
Ramos
v.
Louisiana
,
Appendix to opinion of B REYER , S OTOMAYOR , and K AGAN , JJ.
burden);
Brandenburg
v.
Ohio
, 395 U. S. 444, 447–448
(1969) (
per curiam
) (holding that mere advocacy of violence
is protected by the First Amendment, unless intended to in-
cite it or produce imminent lawlessness, and rejecting the
contrary rule in
Whitney
v.
California
,
Appendix to opinion of B REYER , S OTOMAYOR , and K AGAN , JJ.
455 (1942));
[31]
Smith
v.
Allwright
, 321 U. S. 649, 659–662
(1944) (recognizing all-white primaries are unconstitu-
tional after reconsidering in light of “the unitary character
of the electoral process” recognized in
United States
v.
Clas-
sic
, 313 U. S. 299 (1941), and overruling
Grovey
v.
Town-
send
,
Additional cases the majority cites involved fundamental
factual changes that had undermined the basic premise of
the prior precedent. See
Citizens United
v.
Federal Election
Comm’n
, 558 U. S. 310, 364 (2010) (expanding First
Amendment protections for campaign-related speech and
citing technological changes that undermined the distinc-
tions of the earlier regime and made workarounds easy, and
overruling
Austin
v.
Michigan Chamber of Commerce
, 494
U. S. 652 (1990), and partially overruling
McConnell
v.
Fed-
eral Election Comm’n
, 540 U. S. 93 (2003));
Crawford
v.
Washington
,
Appendix to opinion of B REYER , S OTOMAYOR , and K AGAN , JJ.
out core testimonial evidence, and overruling
Ohio
v.
Rob-
erts
,
Some cited overrulings involved
both
significant doctrinal
developments
and
changed facts or understandings that
had together undermined a basic premise of the prior deci-
sion. See
Janus
v.
State, County, and Municipal Employ-
ees
,
Appendix to opinion of B REYER , S OTOMAYOR , and K AGAN , JJ.
scrutiny under the Fourteenth Amendment’s Equal Protec-
tion Clause, including because
Reed
v.
Reed
,
Other overrulings occurred very close in time to the orig-
inal decision so did not engender substantial reliance and
could not be described as having been “embedded” as “part
of our national culture.”
Dickerson
v.
United States
, 530
U. S. 428, 443 (2000); see
Payne
v.
Tennessee
,
Appendix to opinion of B REYER , S OTOMAYOR , and K AGAN , JJ. to protect).
The rest of the cited cases were relatively minor in their
effect, modifying part or an application of a prior prece-
dent’s test or analysis. See
Montejo
v.
Louisiana
, 556 U. S.
778 (2009) (citing workability and practical concerns with
additional layers of prophylactic procedural safeguards for
defendants’ right to counsel, as had been enshrined in
Michigan
v.
Jackson
,
In sum, none of the cases the majority cites is analogous to today’s decision to overrule 50- and 30-year-old water- shed constitutional precedents that remain unweakened by any changes of law or fact.