Caseflicks

Supreme Court of the United States • 2022

Dobbs v. Jackson Women's Health Organization

597 U.S. 215 | 213 L. Ed. 2d 545 | 142 S. Ct. 2228

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Takeaway

In short, Dobbs overruled Roe and Casey, held that the Constitution does not protect abortion, applied rational-basis review to abortion laws, and returned primary authority to regulate or prohibit abortion to elected governments.

Background

Mississippi’s Gestational Age Act generally prohibited abortions after 15 weeks of gestational age, subject to exceptions for medical emergencies and severe fetal abnormalities. Jackson Women’s Health Organization, an abortion clinic, and one of its doctors sued Mississippi officials, arguing that the law violated Roe v. Wade and Planned Parenthood v. Casey because it banned abortions before fetal viability.

The Federal District Court granted summary judgment for the providers and permanently enjoined the Act. Applying Roe and Casey, it held that viability marked the earliest point at which a State’s interest in fetal life could justify a ban on abortion. The Fifth Circuit affirmed. Mississippi sought review, asking whether all pre-viability prohibitions on elective abortion are unconstitutional.

Issues

Issue #1

Whether the Fourteenth Amendment protects a constitutional right to obtain an abortion.

Holding

No. The Constitution does not confer a right to abortion.

Reasoning

The Court began with the Due Process Clause, because Roe and Casey had ultimately located the abortion right in the Fourteenth Amendment’s protection of “liberty.” Under the Court’s substantive-due-process cases, an unenumerated right is protected only if it is deeply rooted in the Nation’s history and tradition and implicit in the concept of ordered liberty. The Court treated that historical inquiry as a restraint against judges converting their own policy preferences into constitutional law.

The Court concluded that abortion does not satisfy that test. It reasoned that abortion was criminal at common law at least after quickening, that nineteenth-century statutes increasingly criminalized abortion at all stages of pregnancy, and that three-quarters of the States had prohibited abortion at all stages when the Fourteenth Amendment was ratified in 1868. In the Court’s view, neither American law nor legal commentary recognized a constitutional abortion right before the decades immediately preceding Roe.

The Court rejected arguments that abortion is protected as part of a broader right to privacy, autonomy, bodily integrity, or intimate decisionmaking. Those formulations, it reasoned, were too broad and could support asserted rights to conduct such as illicit drug use or prostitution. More importantly, the Court said abortion is distinct from contraception, marriage, sexual intimacy, and family-relationship cases because abortion involves the destruction of what Roe called “potential life.”

The Court also rejected an Equal Protection basis for an abortion right. Relying on Geduldig v. Aiello and Bray v. Alexandria Women’s Health Clinic, it concluded that abortion regulation is not a sex-based classification subject to heightened scrutiny unless it is a pretext for invidious sex discrimination.

Issue #2

Whether stare decisis required retention of Roe v. Wade and Planned Parenthood v. Casey.

Holding

No. Stare decisis did not justify retaining Roe and Casey, which the Court overruled.

Reasoning

The Court emphasized that stare decisis promotes stability, reliance, evenhandedness, and confidence in the judiciary, but is not an inexorable command. It stated that precedent is at its weakest in constitutional cases because an erroneous constitutional decision ordinarily cannot be corrected through ordinary legislation.

Applying its stare decisis factors, the Court called Roe “egregiously wrong” from the start. It concluded that Roe lacked grounding in constitutional text, history, and precedent; misstated abortion history; created a trimester framework resembling legislation; and failed to justify its central viability line. Casey, in the Court’s view, abandoned or criticized much of Roe’s reasoning while retaining its central result without supplying a new constitutional basis.

The Court further held that Casey’s undue-burden test was unworkable. It described terms such as “undue burden,” “substantial obstacle,” “unnecessary health regulation,” and the “large fraction” test as indeterminate, and it pointed to disagreements among Justices and lower courts about how to apply the standard.

The Court found that Roe and Casey had distorted unrelated legal doctrines, including facial-challenge rules, third-party standing, res judicata, severability, constitutional avoidance, and some First Amendment principles. It also found no conventional reliance interests comparable to property or contract reliance. Casey’s more intangible reliance theory, concerning women’s organization of intimate and economic lives around abortion access, was deemed too speculative and policy-laden for judicial assessment.

Finally, the Court rejected Casey’s concern that overruling Roe would harm the Court’s public legitimacy. The Court reasoned that legitimacy depends on deciding cases according to law rather than public reaction or political pressure. It concluded that neither Roe nor Casey had ended the national conflict over abortion, and that the Court lacked authority to impose a permanent settlement of that controversy.

Issue #3

What standard of review governs state abortion regulations after Roe and Casey are overruled, and whether Mississippi’s 15-week law survives that review.

Holding

Rational-basis review governs, and Mississippi’s Gestational Age Act is constitutional.

Reasoning

Because abortion is not a fundamental constitutional right, the Court held that abortion regulations receive the same rational-basis review generally applicable to health and welfare legislation. A law must be sustained if a legislature could rationally believe that it serves a legitimate state interest; courts may not substitute their social or economic judgments for those of elected lawmakers.

The Court identified legitimate interests that can support abortion regulation, including respect for and preservation of prenatal life, maternal health and safety, preventing particularly gruesome procedures, preserving the integrity of the medical profession, mitigating fetal pain, and preventing discrimination based on race, sex, or disability.

Mississippi’s legislature found that the State had an interest in protecting unborn life and that abortions after 15 weeks commonly use dilation-and-evacuation procedures that the legislature regarded as dangerous, barbaric, and demeaning to the medical profession. The Court held those findings supplied a rational basis for the Act, so the providers’ constitutional challenge failed.

Concurrences

Justice Thomas

Reasoning

Justice Thomas joined the Court’s opinion but wrote to argue that the Court should go further and reconsider substantive due process itself. In his view, the Due Process Clause guarantees procedure before a deprivation of life, liberty, or property; it does not itself protect substantive rights against government action regardless of the process supplied.

He maintained that substantive due process lacks textual and historical support and gives judges excessive discretion to identify unenumerated rights based on policy preferences. In his view, that problem is especially evident in the abortion cases, which he regarded as efforts to locate a preferred policy outcome within an undefined conception of liberty.

Justice Thomas agreed that the Court’s decision did not itself decide the status of non-abortion substantive-due-process precedents. But he stated that future cases should reconsider decisions such as Griswold, Lawrence, and Obergefell, while also considering whether any rights at issue might instead be protected through the Fourteenth Amendment’s Privileges or Immunities Clause.

Justice Kavanaugh

Reasoning

Justice Kavanaugh described abortion as a conflict between extraordinarily weighty interests: a pregnant woman’s interests in bodily autonomy, health, equality, and control of her life, and the interests asserted in protecting fetal life. But he concluded that the Constitution does not resolve that moral and policy conflict because abortion is neither expressly addressed nor deeply rooted as a protected right in American history and tradition.

In his view, the Constitution is neutral rather than either pro-life or pro-choice. Roe departed from that neutrality by imposing a nationwide viability rule, while Dobbs returns authority over abortion policy to the people and their elected representatives through state or federal democratic processes. He stressed that the decision does not itself outlaw abortion nationwide or prevent States from protecting abortion access.

Justice Kavanaugh concluded that Roe was not merely wrong, but egregiously wrong, had caused serious jurisprudential and real-world consequences, and did not create reliance interests sufficient to overcome the case for overruling it. He also concluded that Casey’s expectation that its compromise would settle the national dispute had not been borne out.

He added that Dobbs does not overrule or cast doubt on precedents involving contraception, interracial marriage, or same-sex marriage. He also stated his view that States may not bar residents from traveling to another State to obtain an abortion because of the constitutional right to interstate travel, and may not retroactively punish abortions performed before Dobbs because of due process and ex post facto principles.

Chief Justice Roberts

Reasoning

Chief Justice Roberts concurred only in the judgment. He agreed that Mississippi’s 15-week prohibition should be upheld and that Roe and Casey’s viability line should be discarded because it lacked a persuasive constitutional justification, had been adopted without meaningful adversarial briefing, and did not account for state interests later recognized in Gonzales v. Carhart.

He would not have overruled Roe and Casey in full. In his view, their core protection was a woman’s right to make the decision whether to terminate a pregnancy, while viability was a distinct and severable rule governing the scope of that right. He would have held that the right need extend only far enough to provide a reasonable opportunity to choose an abortion, not necessarily until viability.

Because Mississippi allowed abortion for 15 weeks, the Chief Justice concluded that the Act provided a reasonable opportunity to make that choice. He viewed that period as well beyond the time when pregnancy is ordinarily discovered and therefore sufficient except perhaps in unusual circumstances.

The Chief Justice criticized the majority for deciding more than necessary. A narrower ruling rejecting viability would have resolved the case, preserved greater stability in the law, and allowed the Court to consider in a later case whether the Constitution protects any abortion right at all.

Dissents

Justice Breyer

Reasoning

Justice Breyer jointly authored the dissent with Justices Sotomayor and Kagan. The dissent argued that Roe and Casey protected women’s liberty and equality by recognizing that the decision whether to bear a child is among the most personal and consequential decisions a person can make. Those cases did not disregard state interests in fetal life; instead, they balanced those interests against a woman’s interests by permitting substantial regulation before viability and bans after viability, subject to life-and-health exceptions.

The dissent rejected the majority’s historical method. It argued that constitutional liberty is not fixed by the specific expectations of men who ratified the Fourteenth Amendment in 1868, when women lacked equal legal and political status. Under the Court’s precedents, liberty and equality principles apply to new circumstances and previously excluded groups, as shown by cases involving interracial marriage, contraception, same-sex intimacy, and same-sex marriage.

The dissent viewed reproductive autonomy as closely connected to precedents protecting bodily integrity, family relationships, sexual intimacy, procreation, and contraception. It warned that the majority’s assertion that abortion is uniquely different because it involves potential life does not logically preserve other substantive-due-process rights if the controlling test is whether a specific right was protected in nineteenth-century law.

The dissent maintained that stare decisis strongly favored retaining Roe and Casey. It argued that the undue-burden standard was a familiar and workable legal standard, that no major change in law or fact had undermined the decisions, and that women had profoundly relied on abortion access in structuring intimate relationships, education, work, finances, and family life.

The dissent emphasized that the greatest burdens would fall on women with limited resources, who may lack the means to travel to States where abortion remains legal. It predicted that States could impose bans from conception, with limited or no exceptions for rape, incest, serious fetal anomaly, or maternal health, and could punish providers, patients, or those who assist them.

In the dissent’s view, the majority overruled Roe and Casey for no reason other than a change in the Court’s membership. That departure from precedent, it argued, weakens the rule of law, threatens the stability of other constitutional rights, and strips women of a constitutional protection they had possessed for half a century.