Today, the Supreme Court officially submitted its opinion on Dobbs v. Jackson Women's Health Organization that overturns Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The full opinion and dissent were published on the Supreme Court's website, and the full text is embedded below, but here are excerpts from each, explained.
The Opinion
Alito, Thomas, Gorsuch, Kavanaugh, Barrett, Roberts
Justice Alito wrote the opinion, joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett. Justices Thomas, Kavanaugh and Roberts filed concurring opinions.
Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.
Roe was the 1973 case that established a woman’s right to abortion; Casey was the 1992 case that upheld Roe and changed the way abortion restrictions were reviewed — most notably, ruling that abortion restrictions were unconstitutional if they were used for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis. A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore turns to the question that the Casey plurality did not consider.
Stare decisis is Latin for “to stand by things decided.” Practically speaking, this means that in considering cases that are similar to past cases or issues, the court must make a decision that takes into consideration the precedent set by those past cases and what was decided then. Here, the Supreme Court argues that with Casey, rather than upholding Roe according to stare decisis, they should have reopened the discussion on Roe itself.
In short, the opinion here seems to redefine what stare decisis means for the purposes of this opinion.
Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on previability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning.
Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.
These points serve as justification for why the Supreme Court is using Dobbs v. Jackson Women’s Health Organization to reopen the conversation on abortion overall, and to overturn Roe v. Wade.
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The right to abortion does not fall within this category.
The opinion argues that abortion is not explicitly allowed or protected by the Constitution, and that although there are clauses and amendments to the Constitution that make allowances for certain rights that weren’t originally mentioned in the Constitution, abortion should not be among them.
The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest 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 designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential 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 Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.
Here, the opinion argues that the dissenting justices don’t pay enough attention to the question of unborn fetuses’ lives. They say that the fact that the dissenting justices invoke Griswold, Einstadt, Lawrence and Obergefell is evidence that they don’t think (and don’t think the Constitution thinks) that aborting “potential life” is a big deal.
This argument ignores the fact that the invocation of Griswold, Einstadt, Lawrence and Obergefell in relation to Roe and Casey is to make a case for individuals’ reproductive and sexual rights, and to point out that all of these cases conferred rights to individuals that the Constitution did not.
Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” It is hard to see how we could be clearer.
The concurring justices here assure us that precisely because Roe and Casey are fundamentally about something different than Griswold, Einstadt, Lawrence and Obergefell, their decision to reexamine and ultimately strike down Roe and Casey does not inherently suggest that those other cases will also come under scrutiny.
But in Justice Thomas’s concurring opinion, he says:
Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” […] we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
Thomas’s line of reasoning here goes: overturning Roe and Casey on the basis of Constitutional precedent doesn’t itself lead to reexamination of Griswold, Einstadt, Lawrence and Obergefell — but the fact that the Supreme Court has called into question cases involving due process (i.e. individuals’ legal rights) means they should, in fact, reexamine the rights conferred by Griswold, Einstadt, Lawrence and Obergefell.
The Dissent
Breyer, Sotomayor, Kagan
Justices Breyer, Sotomayor and Kagan jointly filed a dissenting opinion.
Roe and Casey well understood the difficulty and divisiveness 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.” Casey, 505 U. S., at 850. And the Court recognized that State has legitimate interests from the outset of the pregnancy in protecting” the “life of the fetus that may become a child.” 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 government) thought proper, in light of all the circumstances and complexities of her own life.
Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law.
The dissenting justices correct the concurring justices’ claim that Roe and Casey failed to acknowledge the State’s interest in protecting fetal life: Roe and Casey protected the right to abortion only to a certain point before fetal viability, and they still allowed individual states to put restrictions on abortion pre-viability as long as it didn’t cause harm to the pregnant person.
The dissent also points out that Roe and Casey established women’s rights when it came to her reproductive choices — a factor that is notably missing throughout the concurring opinions, in which the State’s decisions prevail over any pregnant individual’s.
The justices then go on to detail the restrictions that will now be permissible for any state to impose, no matter the effects on the pregnant person:
And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions. The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation 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 father’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 within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protecting 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.
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. That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate 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 abortion 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.
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. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.” Casey, 505 U. S., at 856. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions.
In addition to the far-reaching ways in which states could now restrict abortion — not just in their own states, but by criminalizing traveling for abortions out-of-state — the dissenting justices point out that it will now be possible for the government to impose a nation-wide abortion ban, legislation that would be as far on the opposite end of the spectrum as possible from the individual rights and freedoms that Roe and Casey have, until today, established.
The dissenting justices go on to explain why Roe and Casey are connected to Griswold, Einstadt, Lawrence and Obergefell, and the repercussions that the concurring justices’ opinion could have even beyond the rights conferred by these cases:
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 Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. 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].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th 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.
[…] 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 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 “repeatedly prais[ing] the ‘balance’” the two cases arrived at (with the word “balance” in scare quotes). To the majority “balance” is a dirty word, as moderation is a foreign concept. The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom. Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).
At various points in their dissent, the dissenting justices point out that the opinion’s definition of stare decisis is inconsistent with the way it’s been defined and implemented in the past (a departure from stare decisis for stare decisis itself):
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 majority has no good reason for the upheaval in law and society it sets off. Roe and Casey have been the law of the land for decades, shaping women’s expectations of their choices when an unplanned pregnancy occurs. Women have relied on the availability of abortion both in structuring their relationships and in planning their lives. The legal framework Roe and Casey developed to balance the competing interests in this sphere has proved workable in courts across the country. No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. Indeed, the Court in Casey already found all of that to be true. Casey is a precedent about precedent. It reviewed the same arguments made here in support 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, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Payne v. Tennessee, 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.
The dissenting justices argue that the concurring justices’ purpose in changing the definition of stare decisis is purely to implement their personal beliefs as conservatives who are against abortion.
Below, the dissenting justices explain why it’s clear that the concurring justices are using law and history selectively to suit their own interests:
Of course, the majority opinion refers as well to some later and earlier history. On the one side of 1868, it goes back as far as the 13th (the 13th!) century. But that turns out to be wheel-spinning. First, it is not clear what relevance such early history should have, even to the majority. If the early history obviously supported abortion rights, the majority would no doubt say that only the views of the Fourteenth Amendment’s ratifiers are germane. See ibid. (It is “better not to go too far back into antiquity,” except if olden “law survived to become our Founders’ law”). Second—and embarrassingly for the majority—early law in fact does provide some support for abortion rights. Common-law authorities did not treat abortion as a crime before “quickening”—the point when the fetus moved in the womb. And early American law followed the common-law rule. So the criminal law of that early time might be taken as roughly consonant with Roe’s and Casey’s different treatment of early and late abortions. Better, then, to move forward in time.
They note that the concurring justices have had to do some complicated gymnastics to pinpoint the historical precedent they rely upon to give their opinion, because there was, in fact, a point in time at which abortion was not considered a crime.
The dissent then comes to the point that many people following this case have noted: the Constitution, if interpreted as it was written and intended at the time, would not only not confer rights of all kinds to women, but didn’t even implicate them in the writing of the Constitution at all.
The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did. And that is indeed what the majority emphasizes over and over again. If the ratifiers did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist. As an initial matter, note a mistake in the just preceding sentence. We referred 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 perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788— did not understand women as full members of the community embraced by the phrase “We the People.”
The dissenting justices delineate the plentiful evidence that the Constitution was intended to be a living document that reflected a changing world and was amended accordingly, something that the concurring justices seem to disagree with — despite myriad cases that have established rights not mentioned in the Constitution and that the concurring justices would not challenge.
Ultimately, in their opinion, the concurring justices follow lines of reasoning that go against how so many previous Supreme Court justices have reasoned, breaking with precedent to redefine laws as they personally would see fit.
With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.
Read the full decision:
Supreme Court Decision Over... by James Crugnale
[Photo credit: Ekaterina Bolovtsova via Pexels]
