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Avortement - Scotus - Dobbs v. Jackson Women's Health Organization - 24 Juin 2022
Avortement - Scotus - Dobbs v. Jackson Women's Health Organization - 24 Juin 2022
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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 410 U. S., at 152–153. The Casey Court
grounded its decision solely on the theory that the right to obtain an
abortion is part of the “liberty” protected by the Fourteenth Amend-
ment’s Due Process Clause. Others have suggested that support can
be found in the Fourteenth Amendment’s Equal Protection Clause, but
that theory is squarely foreclosed by the Court’s precedents, which es-
tablish that a State’s regulation of abortion is not a sex-based classifi-
cation and is thus not subject to the heightened scrutiny that applies
to such classifications. See Geduldig v. Aiello, 417 U. S. 484, 496,
n. 20; Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–
274. Rather, regulations and prohibitions of abortion are governed by
the same standard of review as other health and safety measures.
Pp. 9–11.
(2) Next, the Court examines whether the right to obtain an 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 Casey 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, 586 U. S. ___, ___ (internal quotation
marks omitted). The term “liberty” alone provides little guidance.
Thus, historical inquiries are essential whenever the Court is asked to
recognize a new component of the “liberty” interest protected by the
Due Process Clause. In interpreting what is meant by “liberty,” the
Court must guard against the natural human tendency to confuse
what the Fourteenth Amendment protects with the Court’s own ardent
views about the liberty that Americans should enjoy. For this reason,
Cite as: 597 U. S. ____ (2022) 3
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the Court has been “reluctant” to recognize rights that are not men-
tioned in the Constitution. Collins v. Harker Heights, 503 U. S. 115, 125.
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,” 410 U. S., at 136, but the great common-law au-
thorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-
quickening abortion was a crime. Moreover, many authorities as-
serted that even a pre-quickening abortion was “unlawful” and that,
as a result, an abortionist was guilty of murder if the woman died from
the attempt. The Solicitor General suggests that history supports an
abortion right because of the common law’s failure to criminalize abor-
tion before quickening, but the insistence on quickening was not uni-
versal, see Mills v. Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83
N. C. 630, 632, and regardless, the fact that many States in the late
18th and early 19th century did not criminalize pre-quickening abor-
tions does not mean that anyone thought the States lacked the author-
ity to do so.
Instead of seriously pressing the argument that the abortion right
itself has deep roots, supporters of Roe and Casey contend that the
abortion right is an integral part of a broader entrenched right. Roe
termed this a right to privacy, 410 U. S., at 154, and Casey described
it as the freedom to make “intimate and personal choices” that are
“central to personal dignity and autonomy,” 505 U. S., at 851. Ordered
4 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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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, 410 U. S., at 150; Casey, 505 U. S.,
at 852. But the people of the various States may evaluate those inter-
ests differently. The Nation’s historical understanding of ordered lib-
erty does not prevent the people’s elected representatives from decid-
ing how abortion should be regulated. Pp. 11–30.
(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, 505 U. S., at 851. Those
criteria, at a high level of generality, could license fundamental rights
to illicit drug use, prostitution, and the like. What sharply distin-
guishes the abortion right from the rights recognized in the cases on
which Roe and Casey rely is something that both those decisions
acknowledged: Abortion is different because it destroys what Roe
termed “potential life” and what the law challenged in this case calls
an “unborn human being.” None of the other decisions cited by Roe
and Casey involved the critical moral question posed by abortion. Ac-
cordingly, those cases do not support the right to obtain an abortion,
and the Court’s conclusion that the Constitution does not confer such
a right does not undermine them in any way. Pp. 30–32.
(b) The doctrine of stare decisis does not counsel continued ac-
ceptance of Roe and Casey. Stare decisis plays an important role and
protects the interests of those who have taken action in reliance on a
past decision. It “reduces incentives for challenging settled prece-
dents, saving parties and courts the expense of endless relitigation.”
Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455. It “contrib-
utes to the actual and perceived integrity of the judicial process.”
Payne v. Tennessee, 501 U. S. 808, 827. And it restrains judicial hubris
by respecting the judgment of those who grappled with important
questions in the past. But stare decisis is not an inexorable command,
Pearson v. Callahan, 555 U. S. 223, 233, and “is at its weakest when
[the Court] interpret[s] the Constitution,” Agostini v. Felton, 521 U. S.
203, 235. Some of the Court’s most important constitutional decisions
have overruled prior precedents. See, e.g., Brown v. Board of Educa-
tion, 347 U. S. 483, 491 (overruling the infamous decision in Plessy v.
Ferguson, 163 U. S. 537, and its progeny).
The Court’s cases have identified factors that should be considered
in deciding when a precedent should be overruled. Janus v. State,
County, and Municipal Employees, 585 U. S. ___, ___–___. Five factors
Cite as: 597 U. S. ____ (2022) 5
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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. 505 U. S., at 846. The controlling opinion
criticized and rejected Roe’s trimester scheme, 505 U. S., at 872, and
substituted a new and obscure “undue burden” test. Casey, in short,
either refused to reaffirm or rejected important aspects of Roe’s analy-
sis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed
what it termed Roe’s central holding while suggesting that a majority
might not have thought it was correct, provided no new support for the
abortion right other than Roe’s status as precedent, and imposed a new
test with no firm grounding in constitutional text, history, or prece-
dent. Pp. 45–56.
(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 505 U. S., at 881–
887, with id., at 920–922 (Stevens, J., concurring in part and dissent-
ing in part). The experience of the Courts of Appeals provides further
evidence that Casey’s “line between” permissible and unconstitutional
restrictions “has proved to be impossible to draw with precision.” Ja-
nus, 585 U. S., at ___. Casey has generated a long list of Circuit con-
flicts. Continued adherence to Casey’s unworkable “undue burden”
test would undermine, not advance, the “evenhanded, predictable, and
consistent development of legal principles.” Payne, 501 U. S., at 827.
Pp. 56–62.
(4) Effect on other areas of law. Roe and Casey have led to the
distortion of many important but unrelated legal doctrines, and that
effect provides further support for overruling those decisions. See Ra-
mos v. Louisiana, 590 U. S. ___, ___ (KAVANAUGH, J., concurring in
part). Pp. 62–63.
(5) Reliance interests. Overruling Roe and Casey will not upend
concrete reliance interests like those that develop in “cases involving
property and contract rights.” Payne, 501 U. S., at 828. In Casey, the
controlling opinion conceded that traditional reliance interests were
Cite as: 597 U. S. ____ (2022) 7
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ALITO, J., delivered the opinion of the Court, in which THOMAS, GOR-
SUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and KA-
VANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion
concurring in the judgment. BREYER, SOTOMAYOR, and KAGAN, JJ., filed
a dissenting opinion.
Cite as: 597 U. S. ____ (2022) 1
No. 19–1392
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such a right, and its survey of history ranged from the con-
stitutionally irrelevant (e.g., its discussion of abortion in an-
tiquity) to the plainly incorrect (e.g., its assertion that abor-
tion was probably never a crime under the common law).
After cataloging a wealth of other information having no
bearing on the meaning of the Constitution, the opinion
concluded with a numbered set of rules much like those that
might be found in a statute enacted by a legislature.
Under this scheme, each trimester of pregnancy was 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.”2
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
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1 Roe v. Wade, 410 U. S. 113, 163 (1973).
2 J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82
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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 505 U. S., at 911 (Stevens, J., concurring in part and dissenting
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10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproduc-
tive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American Col-
lege of Obstetricians and Gynecologists, 476 U. S. 747 (1986)).
11 505 U. S., at 874.
12 Id., at 867.
Cite as: 597 U. S. ____ (2022) 5
reaffirm Roe and Casey, and they contend that the Missis-
sippi law cannot stand if we do so. Allowing Mississippi to
prohibit abortions after 15 weeks of pregnancy, they argue,
“would be no different than overruling Casey and Roe en-
tirely.” Brief for Respondents 43. They contend that “no
half-measures” are available and that we must either reaf-
firm or overrule Roe and Casey. Brief for Respondents 50.
We hold that Roe and Casey 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.” Roe’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 Casey’s controlling
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13 Miss. Code Ann. §41–41–191(4)(b) (2018).
6 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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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 ).
15 Those other six countries were Canada, China, the Netherlands,
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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/.
8 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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16 The Court’s words were as follows: “This right of privacy, whether it
op., at 8).
Cite as: 597 U. S. ____ (2022) 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 Casey’s bold
assertion that the abortion right is an aspect of the “liberty”
protected by the Due Process Clause of the Fourteenth
Amendment. 505 U. S., at 846; Brief for Respondents 17;
Brief for United States 21–22.
2
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
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18 We discuss this standard in Part VI of this opinion.
12 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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19 See also, e.g., Duncan v. Louisiana, 391 U. S. 145, 148 (1968) (asking
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20 Address at Sanitary Fair at Baltimore, Md. (Apr. 18, 1864), reprinted
in 7 The Collected Works of Abraham Lincoln 301 (R. Basler ed. 1953).
14 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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21 Four Essays on Liberty 121 (1969).
Cite as: 597 U. S. ____ (2022) 15
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22 That is true regardless of whether we look to the Amendment’s Due
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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”).
24 The exact meaning of “quickening” is subject to some debate. Com-
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”).
18 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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26 2 Gentleman’s Magazine 931 (Aug. 1732).
27 Id., at 932.
28 Ibid.
Cite as: 597 U. S. ____ (2022) 19
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, 31 Ala. 45, 51 (1857); Smith v. State, 33 Me. 48,
55 (1851); State v. Cooper, 22 N. J. L. 52, 52–55 (1849); Com-
monwealth v. Parker, 50 Mass. 263, 264–268 (1845).
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)).
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594, 595–596, 26 N. W. 291, 292–293 (1886); State v. Moore, 25 Iowa 128,
131–132 (1868); Smith v. State, 33 Me. 48, 54–55 (1851).
31 See E. Rigby, A System of Midwifery 73 (1841) (“Under all circum-
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32 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, 13 Pa., 631, 633 (1850)
(the quickening rule “never ought to have been the law anywhere”); J.
Bishop, Commentaries on the Law of Statutory Crimes §744, p. 471
(1873) (“If we look at the reason of the law, we shall prefer” a rule that
“discard[s] this doctrine of the necessity of a quickening”); I. Dana, Re-
port of the Committee on the Production of Abortion, in 5 Transactions
Cite as: 597 U. S. ____ (2022) 23
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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
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.
24 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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36 See 410 U. S., at 154–155 (collecting cases decided between 1970 and
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 Roe and Casey rec-
ognized. This Court has long disfavored arguments based
on alleged legislative motives. See, e.g., Erie v. Pap’s A. M.,
529 U. S. 277, 292 (2000) (plurality opinion); Turner Broad-
casting System, Inc. v. FCC, 512 U. S. 622, 652 (1994);
United States v. O’Brien, 391 U. S. 367, 383 (1968); Arizona
v. California, 283 U. S. 423, 455 (1931) (collecting cases).
The Court has recognized that inquiries into legislative mo-
tives “are a hazardous matter.” O’Brien, 391 U. S., at 383.
Even when an argument about legislative motive is backed
by statements made by legislators who voted for a law, we
Cite as: 597 U. S. ____ (2022) 29
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
1
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, 410 U. S., at 154, and Casey described it as the free-
dom to make “intimate and personal choices” that are “cen-
tral to personal dignity and autonomy,” 505 U. S., at 851.
Casey elaborated: “At the heart of liberty is the right to de-
fine one’s own concept of existence, of meaning, of the uni-
verse, and of the mystery of human life.” Ibid.
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
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41 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., 587 U. S. ___, ___–___ (2019) (THOMAS, J., concurring) (slip op.,
at 1–4). And it is beyond dispute that Roe has had that demographic
effect. A highly disproportionate percentage of aborted fetuses are Black.
See, e.g., Dept. of Health and Human Servs., Centers for Disease Control
and Prevention (CDC), K. Kortsmit et al., Abortion Surveillance—United
States, 2019, 70 Morbidity and Mortality Report, Surveillance Summar-
ies, p. 20 (Nov. 26, 2021) (Table 6). For our part, we do not question the
motives of either those who have supported or those who have opposed
laws restricting abortions.
Cite as: 597 U. S. ____ (2022) 31
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42 See, e.g., Pregnancy Discrimination Act, 92 Stat. 2076, 42 U. S. C.
——————
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 Casey, 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).
46 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).
Cite as: 597 U. S. ____ (2022) 35
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.
36 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
624 (1943), after the lapse of only three years, the Court
overruled Minersville School Dist. v. Gobitis, 310 U. S. 586
(1940), and held that public school students could not be
compelled to salute the flag in violation of their sincere be-
liefs. Barnette stands out because nothing had changed
during the intervening period other than the Court’s be-
lated recognition that its earlier decision had been seriously
wrong.
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,
——————
48 See, e.g., Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-
——————
Metropolitan Transit Authority, 469 U. S. 528, 530 (1985) (rejecting the
principle that the Commerce Clause does not empower Congress to en-
force requirements, such as minimum wage laws, against the States “ ‘in
areas of traditional governmental functions’ ”), overruling National
League of Cities v. Usery, 426 U. S. 833 (1976); Illinois v. Gates, 462 U. S.
213 (1983) (the Fourth Amendment requires a totality of the circum-
stances approach for determining whether an informant’s tip establishes
probable cause), overruling Aguilar v. Texas, 378 U. S. 108 (1964), and
Spinelli v. United States, 393 U. S. 410 (1969); United States v. Scott, 437
U. S. 82 (1978) (the Double Jeopardy Clause does not apply to Govern-
ment appeals from orders granting defense motions to terminate a trial
before verdict), overruling United States v. Jenkins, 420 U. S. 358 (1975);
Craig v. Boren, 429 U. S. 190 (1976) (gender-based classifications are
subject to intermediate scrutiny under the Equal Protection Clause),
overruling Goesaert v. Cleary, 335 U. S. 464 (1948); Taylor v. Louisiana,
419 U. S. 522 (1975) (jury system which operates to exclude women from
jury service violates the defendant’s Sixth and Fourteenth Amendment
right to an impartial jury), overruling Hoyt v. Florida, 368 U. S. 57
(1961); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam) (the mere
advocacy of violence is protected under the First Amendment unless it is
directed to incite or produce imminent lawless action), overruling Whit-
ney v. California, 274 U. S. 357 (1927); Katz v. United States, 389 U. S.
347, 351 (1967) (Fourth Amendment “protects people, not places,” and
extends to what a person “seeks to preserve as private”), overruling
Olmstead v. United States, 277 U. S. 438 (1928), and Goldman v. United
States, 316 U. S. 129 (1942); Miranda v. Arizona, 384 U. S. 436 (1966)
(procedural safeguards to protect the Fifth Amendment privilege against
self-incrimination), overruling Crooker v. California, 357 U. S. 433
(1958), and Cicenia v. Lagay, 357 U. S. 504 (1958); Malloy v. Hogan, 378
U. S. 1 (1964) (the Fifth Amendment privilege against self-incrimination
is also protected by the Fourteenth Amendment against abridgment by
the States), overruling Twining v. New Jersey, 211 U. S. 78 (1908), and
Adamson v. California, 332 U. S. 46 (1947); Wesberry v. Sanders, 376
U. S. 1, 7–8 (1964) (congressional districts should be apportioned so that
“as nearly as is practicable one man’s vote in a congressional election is
to be worth as much as another’s”), overruling in effect Colegrove v.
Green, 328 U. S. 549 (1946); Gideon v. Wainwright, 372 U. S. 335 (1963)
(right to counsel for indigent defendant in a criminal prosecution in state
court under the Sixth and Fourteenth Amendments), overruling Betts v.
Brady, 316 U. S. 455 (1942); Baker v. Carr, 369 U. S. 186 (1962) (federal
courts have jurisdiction to consider constitutional challenges to state re-
districting plans), effectively overruling in part Colegrove, 328 U. S. 549;
Cite as: 597 U. S. ____ (2022) 43
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Mapp v. Ohio, 367 U. S. 643 (1961) (the exclusionary rule regarding the
inadmissibility of evidence obtained in violation of the Fourth Amend-
ment applies to the States), overruling Wolf v. Colorado, 338 U. S. 25
(1949); Smith v. Allwright, 321 U. S. 649 (1944) (racial restrictions on
the right to vote in primary elections violates the Equal Protection
Clause of the Fourteenth Amendment), overruling Grovey v. Townsend,
295 U. S. 45 (1935); United States v. Darby, 312 U. S. 100 (1941) (con-
gressional power to regulate employment conditions under the Com-
merce Clause), overruling Hammer v. Dagenhart, 247 U. S. 251 (1918);
Erie R. Co. v. Tompkins, 304 U. S. 64 (1938) (Congress does not have the
power to declare substantive rules of common law; a federal court sitting
in diversity jurisdiction must apply the substantive state law), overrul-
ing Swift v. Tyson, 16 Pet. 1 (1842).
44 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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49 See, e.g., C. Patterson, “Not Worth the Rearing”: The Causes of In-
——————
50 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”).
52 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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51 See W. Lusk, Science and the Art of Midwifery 74–75 (1882) (explain-
ing that “[w]ith care, the life of a child born within [the eighth month of
pregnancy] may be preserved”); id., at 326 (“Where the choice lies with
the physician, the provocation of labor is usually deferred until the
thirty-third or thirty-fourth week”); J. Beck, Researches in Medicine and
Medical Jurisprudence 68 (2d ed. 1835) (“Although children born before
the completion of the seventh month have occasionally survived, and
been reared, yet in a medico-legal point of view, no child ought to be con-
sidered as capable of sustaining an independent existence until the sev-
enth month has been fully completed”); see also J. Baker, The Incubator
and the Medical Discovery of the Premature Infant, J. Perinatology 322
(2000) (explaining that, in the 19th century, infants born at seven to
eight months’ gestation were unlikely to survive beyond “the first days
of life”).
Cite as: 597 U. S. ____ (2022) 53
failed to say that they agreed with the viability rule; in-
stead, they candidly acknowledged “the reservations [some]
of us may have in reaffirming [that] holding of Roe.” Id., at
853.
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, Casey 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 Roe, 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,
556 U. S. 778, 792 (2009); Patterson v. McLean Credit Un-
ion, 491 U. S. 164, 173 (1989); Gulfstream Aerospace Corp.
v. Mayacamas Corp., 485 U. S. 271, 283–284 (1988). Ca-
sey’s “undue burden” test has scored poorly on the worka-
bility scale.
Cite as: 597 U. S. ____ (2022) 57
1
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.” 505 U. S., at 992; see also June Medi-
cal Services L. L. C. v. Russo, 591 U. S. ___, ___ (2020)
(GORSUCH, J., dissenting) (slip op., at 17) (“[W]hether a bur-
den is deemed undue depends heavily on which factors the
judge considers and how much weight he accords each of
them” (internal quotation marks and alterations omitted)).
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.” 505 U. S., at 878
(emphasis added); see also id., at 877. But whether a par-
ticular obstacle qualifies as “substantial” is often open to
reasonable debate. In the sense relevant here, “substan-
tial” means “of ample or considerable amount, quantity, or
size.” Random House Webster’s Unabridged Dictionary
1897 (2d ed. 2001). Huge burdens are plainly “substantial,”
and trivial ones are not, but in between these extremes,
there is a wide gray area.
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.” Casey,
505 U. S., at 878. To the extent that this rule applies to pre-
viability abortions, it overlaps with the first rule and ap-
pears to impose a different standard. Consider a law that
imposes an insubstantial obstacle but serves little purpose.
As applied to a pre-viability abortion, would such a regula-
tion be constitutional on the ground that it does not impose
a “substantial obstacle”? Or would it be unconstitutional on
58 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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53 Compare Whole Woman’s Health v. Paxton, 10 F. 4th 430, 440 (CA5
352, 367 (CA4 1998), with Planned Parenthood of Ind. & Ky., Inc. v. Ad-
Cite as: 597 U. S. ____ (2022) 61
——————
ams, 937 F. 3d 973, 985–990 (CA7 2019), cert. granted, judgment va-
cated, 591 U. S. ___ (2020), and Planned Parenthood, Sioux Falls Clinic
v. Miller, 63 F. 3d 1452, 1460 (CA8 1995).
55 Compare Whole Woman’s Health v. Paxton, 10 F. 4th, at 435–436,
with West Ala. Women’s Center v. Williamson, 900 F. 3d 1310, 1319, 1327
(CA11 2018), and EMW Women’s Surgical Center, P.S.C. v. Friedlander,
960 F. 3d 785, 806–808 (CA6 2020).
56 Compare Tucson Woman’s Clinic v. Eden, 379 F. 3d 531, 541 (CA9
(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
F. 4th 409, 451 (CA6 2021) (Thapar, J., concurring in judgment in part
and dissenting in part); Preterm-Cleveland, 994 F. 3d, at 524; Planned
Parenthood of Ind. & Ky., Inc. v. Commissioner of Ind. State Dept. of
62 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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Health, 888 F. 3d 300, 313 (CA7 2018) (Manion, J., concurring in judg-
ment in part and dissenting in part); Planned Parenthood of Ind. & Ky.,
Inc. v. Box, 949 F. 3d 997, 999 (CA7 2019) (Easterbrook, J., concurring in
denial of reh’g en banc) (“How much burden is ‘undue’ is a matter of judg-
ment, which depends on what the burden would be . . . and whether that
burden is excessive (a matter of weighing costs against benefits, which
one judge is apt to do differently from another, and which judges as a
group are apt to do differently from state legislators)”); National Abor-
tion Federation v. Gonzales, 437 F. 3d 278, 290–296 (CA2 2006) (Walker,
C. J., concurring); Planned Parenthood of Rocky Mountains Servs. Corp.
v. Owens, 287 F. 3d 910, 931 (CA10 2002) (Baldock, J., dissenting).
Cite as: 597 U. S. ____ (2022) 63
Unified School Dist. v. Newdow, 542 U. S. 1, 15, 17–18 (2004), with June
Medical, 591 U. S., at ___ (ALITO, J., dissenting) (slip op., at 28), id., at
___–___ (GORSUCH, J., dissenting) (slip op., at 6–7) (collecting cases), and
Whole Woman’s Health, 579 U. S., at 632, n. 1 (THOMAS, J., dissenting).
62 Compare id., at 598–606 (majority opinion), with id., at 645–666
——————
census.gov/quickfacts/MS.
68 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.
Cite as: 597 U. S. ____ (2022) 67
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.
2
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
v. Federal Election Comm’n, 558 U. S. 310, 384 (2010)
(ROBERTS, 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 Casey 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.
Roe’s trimester rule was expressly tied to viability, see
410 U. S., at 163–164, and viability played a critical role in
later abortion decisions. For example, in Planned
Parenthood of Central Mo. v. Danforth, 428 U. S. 52, the
Court reiterated Roe’s rule that a “State may regulate an
abortion to protect the life of the fetus and even may pro-
scribe abortion” at “the stage subsequent to viability.” 428
U. S., at 61 (emphasis added). The Court then rejected a
challenge to Missouri’s definition of viability, holding that
the State’s definition was consistent with Roe’s. 428 U. S.,
74 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
3
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, 14 F. 4th 550
(CA6 2021). If we held only that Mississippi’s 15-week rule
is constitutional, we would soon be called upon to pass on
the constitutionality of a panoply of laws with shorter dead-
lines or no deadline at all. The “measured course” charted
by the concurrence would be fraught with turmoil until the
Court answered the question that the concurrence seeks to
defer.
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 Roe and
Casey would be prolonged. It is far better—for this Court
Cite as: 597 U. S. ____ (2022) 77
Opinion
Appendix of the Court
A to opinion of the Court
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.”69
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
——————
69 1825 Mo. Laws p. 283 (emphasis added); see also, Mo. Rev. Stat., Art.
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70 Ill. Rev. Code §46 (1827) (emphasis added); see also Ill. Rev. Code
Opinion
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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.”72
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).
72 1834 Ohio Laws pp. 20–21 (emphasis deleted and added).
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75 1841 Ala. Acts p. 143 (emphasis added).
76 1845 Mass. Acts p. 406 (emphasis added).
84 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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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.”79
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).
79 1848 Va. Acts p. 96 (emphasis added).
86 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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80 1849 N. H. Laws p. 708 (emphasis added).
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added).
86 Wis. Rev. Stat., ch. 164, §11, ch. 169, §58 (1858) (emphasis added).
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88 1860 Conn. Pub. Acts p. 65 (emphasis added).
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89 1861 Pa. Laws pp. 404–405 (emphasis added).
90 R. I. Acts & Resolves p. 133 (emphasis added).
91 1861 Nev. Laws p. 63 (emphasis added and deleted).
92 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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92 W. Va. Const., Art. XI, §8 (1862).
93 Va. Code, Tit. 54, ch. 191, §8 (1849) (emphasis added); see also W. Va.
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Neb. Gen. Stat., ch. 58, §§6, 39 (1873) (expanding criminal liability for
abortions by other means, including instruments).
94 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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97 1868 Fla. Laws, ch. 1637, pp. 64, 97 (emphasis added).
96 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion
Appendix of the Court
A to opinion of the Court
Opinion
Appendix of the Court
A to opinion of the Court
——————
100 1876 Ga. Acts & Resolutions p. 113 (emphasis added).
101 1881 N. C. Sess. Laws pp. 584–585 (emphasis added).
98 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion
Appendix of the Court
A to opinion of the Court
——————
102 1883 Del. Laws, ch. 226 (emphasis added).
103 1883 Tenn. Acts pp. 188–189 (emphasis added).
Cite as: 597 U. S. ____ (2022) 99
Opinion
Appendix of the Court
A to opinion of the Court
Opinion
Appendix of the Court
A to opinion of the Court
Opinion
Appendix of the Court
B to opinion of the Court
(emphasis added)).
102 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
Opinion
Appendix of the Court
B to opinion of the Court
Opinion
Appendix of the Court
B to opinion of the Court
——————
109 1861 Terr. of Colo. Gen. Laws pp. 296–297. Colorado became a
Opinion
Appendix of the Court
B to opinion of the Court
——————
111 1864 Terr. of Mont. Laws p. 184. Montana became a State in 1889.
Opinion
Appendix of the Court
B to opinion of the Court
——————
113 1869 Terr. of Wyo. Gen. Laws p. 104 (emphasis added). Wyoming
Opinion
Appendix of the Court
B to opinion of the Court
——————
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.
116 Okla. Stat. §2187 (1890) (emphasis added). Oklahoma became a
Opinion
Appendix of the Court
B to opinion of the Court
Opinion
Appendix of the Court
B to opinion of the Court
——————
119 §809, 31 Stat. 1322 (1901) (emphasis added).
Cite as: 597 U. S. ____ (2022) 1
No. 19–1392
_________________
No. 19–1392
_________________
——————
1 The Court’s opinion today also recounts the pre-constitutional
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.4
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.
No. 19–1392
_________________
——————
*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, 492 U. S., at 518–521
(plurality opinion) (abandoning “key elements” of the Roe framework un-
der stare decisis while declining to reconsider Roe’s holding that the Con-
stitution protects the right to an abortion).
Cite as: 597 U. S. ____ (2022) 11
KAGAN, J.,
BREYER, SOTOMAYOR anddissenting
KAGAN, JJ., dissenting
No. 19–1392
_________________
——————
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.
Cite as: 597 U. S. ____ (2022) 13
——————
2 See, e.g., 1 W. Blackstone, Commentaries on the Laws of England
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.
14 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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.” 576 U. S., at 671.
18 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
——————
5 In a perplexing paragraph in its opinion, the majority declares that it
need not say whether that statement from Casey is true. See ante, at 32–
33. But how could that be? Has not the majority insisted for the prior
30 or so pages that the “specific practice[ ]” respecting abortion at the
Cite as: 597 U. S. ____ (2022) 19
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 Roe’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 Casey. 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.
20 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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 Roe’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).7
——————
7 Indulge a few more words about this point. The majority had a choice
of two different ways to overrule Roe and Casey. 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
Cite as: 597 U. S. ____ (2022) 27
——————
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.
8 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.
28 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
legislatures.9
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
——————
9 As this Court has considered this case, some state legislators have
them.
That means the Court may not overrule a decision, even
a constitutional one, without a “special justification.” Gam-
ble v. United States, 587 U. S. ___, ___ (2019) (slip op., at
11). Stare decisis is, of course, not an “inexorable com-
mand”; it is sometimes appropriate to overrule an earlier
decision. Pearson v. Callahan, 555 U. S. 223, 233 (2009).
But the Court must have a good reason to do so over and
above the belief “that the precedent was wrongly decided.”
Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258,
266 (2014). “[I]t is not alone sufficient that we would decide
a case differently now than we did then.” Kimble v. Marvel
Entertainment, LLC, 576 U. S. 446, 455 (2015).
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. Casey, 505
32 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
——————
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.
11 The rest of the majority’s supposed splits are, shall we say, unim-
Cite as: 597 U. S. ____ (2022) 35
——————
12 To take just the last, most medical treatments for miscarriage are
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.
14 See Centers for Medicare and Medicaid Services, Issue Brief: Im-
——————
15 Dept. of Labor, National Compensation Survey: Employee Benefits
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).
18 The majority finally notes the claim that “people now have a new
——————
the 1970s, long before Casey. 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.
19 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”).
42 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
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-
——————
20 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.
Cite as: 597 U. S. ____ (2022) 43
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
46 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
——————
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.
24 See Brief for 547 Deans 6–7 (noting that 51 percent of women who
——————
25 This statement of course assumes that States are not successful in
——————
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.
27 Mississippi is likely to be one of the States where these costs are
——————
28 The majority’s sole citation for its “concreteness” requirement is
not on those who have disavowed it. See Casey, 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, 384 U. S. 436 (1966)). Rescinding an in-
dividual right in its entirety and conferring it on the State,
an action the Court takes today for the first time in history,
affects all who have relied on our constitutional system of
government and its structure of individual liberties pro-
tected from state oversight. Roe and Casey have of course
aroused controversy and provoked disagreement. But the
right those decisions conferred and reaffirmed is part of so-
ciety’s understanding of constitutional law and of how the
Court has defined the liberty and equality that women are
entitled to claim.
After today, young women will come of age with fewer
Cite as: 597 U. S. ____ (2022) 55
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.
30 A. Pittman, Mississippi’s Six-Week Abortion Ban at 5th Circuit Ap-
BREYER
Appendix , SOTOMAYOR
to opinion , and, K
of BREYER AGAN, JJ., ,dissenting
SOTOMAYOR and KAGAN, 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. Casey, 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, 590 U. S. ___, ___ (2020) (slip op., at
22) (holding the Sixth Amendment requires a unanimous
jury verdict in state prosecutions for serious offenses, and
overruling Apodaca v. Oregon, 406 U. S. 404 (1972), be-
cause “in the years since Apodaca, this Court ha[d] spoken
inconsistently about its meaning” and had undercut its va-
lidity “on at least eight occasions”); Ring v. Arizona, 536
U. S. 584, 608–609 (2002) (recognizing a Sixth Amendment
right to have a jury find the aggravating factors necessary
to impose a death sentence and, in so doing, rejecting Wal-
ton v. Arizona, 497 U. S. 639 (1990), as overtaken by and
irreconcilable with Apprendi v. New Jersey, 530 U. S. 466
(2000)); Agostini v. Felton, 521 U. S. 203, 235–236 (1997)
(considering the Establishment Clause’s constraint on gov-
ernment aid to religious instruction, and overruling Aguilar
v. Felton, 473 U. S. 402 (1985), in light of several related
doctrinal developments that had so undermined Aguilar
and the assumption on which it rested as to render it no
longer good law); Batson v. Kentucky, 476 U. S. 79, 93–96
(1986) (recognizing that a defendant may make a prima fa-
cie showing of purposeful racial discrimination in selection
of a jury venire by relying solely on the facts in his case,
and, based on subsequent developments in equal protection
law, rejecting part of Swain v. Alabama, 380 U. S. 202
(1965), which had imposed a more demanding evidentiary
62 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
BREYER
Appendix , SOTOMAYOR
to opinion , and, K
of BREYER AGAN, JJ., ,dissenting
SOTOMAYOR and KAGAN, JJ.
BREYER
Appendix , SOTOMAYOR
to opinion , and, K
of BREYER AGAN, JJ., ,dissenting
SOTOMAYOR and KAGAN, JJ.
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31 We have since come to understand Gideon as part of a larger doctri-
BREYER
Appendix , SOTOMAYOR
to opinion , and, K
of BREYER AGAN, JJ., ,dissenting
SOTOMAYOR and KAGAN, JJ.
BREYER
Appendix , SOTOMAYOR
to opinion , and, K
of BREYER AGAN, JJ., ,dissenting
SOTOMAYOR and KAGAN, JJ.
BREYER
Appendix , SOTOMAYOR
to opinion , and, K
of BREYER AGAN, JJ., ,dissenting
SOTOMAYOR and KAGAN, 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, 475 U. S. 625 (1986)); Illinois v. Gates,
462 U. S. 213, 227–228 (1983) (replacing a two-pronged test
under Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli
v. United States, 393 U. S. 410 (1969), in favor of a tradi-
tional totality-of-the-circumstances approach to evaluate
probable cause for issuance of a warrant); Wesberry v.
Sanders, 376 U. S. 1, 4 (1964), and Baker v. Carr, 369 U. S.
186, 202 (1962) (clarifying that the “political question” pas-
sage of the minority opinion in Colegrove v. Green, 328 U. S.
549 (1946), was not controlling law).
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.