Dobbs v. Jackson Women's Health Organization (2022)
No. 19–1392
Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.
On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit
[June 24, 2022]
Justice Alito delivered the opinion of the Court. Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion 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 regulated 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," 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 Roewas memorable and brutal: Roe was "not constitutional law" at all and gave "almost no sense of an obligation to try to be."
At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the "exercise of raw judicial power," 410 U.S., at 222, and it sparked a national controversy that has embittered our political culture for a half century.
Eventually, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court revisited Roe, but the Members of the Court split three ways. Two Justices expressed no desire to change Roe in any way. Four others wanted to overrule the decision in its entirety. And the three remaining Justices, who jointly signed the controlling opinion, took a third position. Their opinion did not endorse Roe's reasoning, and it even hinted that one or more of its authors might have "reservations" about whether the Constitution protects a right to abortion. But the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe's "central holding"—that a State may not constitutionally protect fetal life before "viability"—even if that holding was wrong. Anything less, the opinion claimed, would undermine respect for this Court and the rule of law.
Paradoxically, the judgment in Casey did a fair amount of overruling. Several important abortion decisions were overruled in toto, and Roe itself was overruled in part. Casey threw out Roe's trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an "undue burden" on a woman's right to have an abortion. The decision provided no clear guidance about the difference between a "due" and an "undue" burden. But the three Justices who authored the controlling opinion "call[ed] the contending sides of a national controversy to end their national division" by treating the Court's decision as the final settlement of the question of the constitutional right to abortion.
As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few 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.
Before us now is one such state law. The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy—several weeks before the point at which a fetus is now regarded as "viable" outside the womb. In defending this law, the State's primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Mississippi 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 entirely." Brief for Respondents 43. They contend that "no half-measures" are available and that we must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.
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." 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 Fourteenth 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 characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an "unborn human being."
Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. "The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting." Casey, 505 U.S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.
I
The law at issue in this case, Mississippi's Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018), contains this central provision: "Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks." §4(b).
To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States "permit[ted] nontherapeutic or elective abortion-on-demand after the twentieth week of gestation."15 §2(a). The legislature then found that at 5 or 6 weeks' gestational age an "unborn human being's heart begins beating"; at 8 weeks the "unborn human being begins to move about in the womb"; at 9 weeks "all basic physiological functions are present"; at 10 weeks "vital organs begin to function," and "[h]air, fingernails, and toenails . . . begin to form"; at 11 weeks "an unborn human being's diaphragm is developing," and he or she may "move about freely in the womb"; and at 12 weeks the "unborn human being" has "taken on 'the human form' in all relevant respects." §2(b)(i) (quoting Gonzales v. Carhart, 550 U.S. 124, 160 (2007)). It found that most abortions after 15 weeks employ "dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child," and it concluded that the "intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession." §2(b)(i)(8).
Respondents are an abortion clinic, Jackson Women's Health Organization, and one of its doctors. On the day the Gestational Age Act was enacted, respondents filed suit in Federal District Court against various Mississippi officials, alleging that the Act violated this Court's precedents establishing a constitutional right to abortion. The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that "viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions" and that 15 weeks' gestational age is "prior to viability." Jackson Women's Health Org. v. Currier, 349 F. Supp. 3d 536, 539–540 (SD Miss. 2019) (internal quotation marks omitted). The Fifth Circuit affirmed. 945 F. 3d 265 (2019).
We granted certiorari, 593 U.S. ___ (2021), to resolve the question whether "all pre-viability prohibitions on elective abortions are unconstitutional," Pet. for Cert. i. Petitioners' primary defense of the Mississippi Gestational Age Act is that Roe and Casey were wrongly decided and that "the Act is constitutional because it satisfies rational-basis review." Brief for Petitioners 49. Respondents answer that allowing Mississippi to ban pre-viability abortions "would be no different than overruling Casey and Roe entirely." Brief for Respondents 43. They tell us that "no half-measures" are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.
II
We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion. Skipping over that question, the controlling opinion in Casey reaffirmed Roe's "central holding" based solely on the doctrine of stare decisis, but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based. See infra, at 45–56.
We therefore turn to the question that the Casey plurality did not consider, and we address that question in three steps. First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment's reference to "liberty" protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation's history and tradition and whether it is an essential component of what we have described as "ordered liberty." Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.
A
1
Constitutional analysis must begin with "the language of the instrument," Gibbons v. Ogden, 9 Wheat. 1, 186–189 (1824), which offers a "fixed standard" for ascertaining what our founding document means, 1 J. Story, Commentaries on the Constitution of the United States §399, p. 383 (1833). The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.
Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. See 410 U.S., at 152–153. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Id., at 152.
The Court's discussion left open at least three ways in which some combination of these provisions could protect the abortion right. One possibility was that the right was "founded . . . in the Ninth Amendment's reservation of rights to the people." Id., at 153. Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions, and that this right had been "incorporated" into the Due Process Clause of the Fourteenth Amendment just as many other Bill of Rights provisions had by then been incorporated. Ibid; see also McDonald v. Chicago, 561 U.S. 742, 763–766 (2010) (majority opinion) (discussing incorporation). And a third path was that the First, Fourth, and Fifth Amendments played no role and that the right was simply a component of the "liberty" protected by the Fourteenth Amendment's Due Process Clause. Roe, 410 U.S., at 153. Roe expressed the "feel[ing]" that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the "liberty" protected by the Fourteenth Amendment's Due Process Clause.
We discuss this theory in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents' amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment's Equal Protection Clause. See Brief for United States as Amicus Curiae 24 (Brief for United States); see also Brief for Equal Protection Constitutional Law Scholars as Amici Curiae. Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State's regulation of abortion is not a sex-based classification and is thus not subject to the "heightened scrutiny" that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a "mere pretex[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 "invidiously discriminatory animus" against women. Bray v. Alexandria 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.
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 provides substantive, as well as procedural, protection for "liberty"—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 "incorporates" the great majority of those rights and thus makes them equally applicable to the States. See McDonald, 561 U.S., at 763–767, and nn. 12–13. The second category— which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is "deeply rooted in [our] history and tradition" and whether it is essential to our Nation's "scheme of ordered liberty." Timbs v. Indiana, 586 U.S. ___, ___ (2019) (slip op., at 3) (internal quotation marks omitted); McDonald, 561 U.S., at 764, 767 (internal quotation marks omitted); Glucksberg, 521 U.S., at 721 (internal quotation marks omitted). And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue.
Justice Ginsburg's opinion for the Court in Timbs is a recent example. In concluding that the Eighth Amendment's protection against excessive fines is "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition," 586 U.S., at ___ (slip op., at 7) (internal quotation marks omitted), her opinion traced the right back to Magna Carta, Blackstone's Commentaries, and 35 of the 37 state constitutions in effect at the ratifica- tion of the Fourteenth Amendment. 586 U.S., at ___–___ (slip op., at 3–7).
A similar inquiry was undertaken in McDonald, which held that the Fourteenth Amendment protects the right to keep and bear arms. The lead opinion surveyed the origins of the Second Amendment, the debates in Congress about the adoption of the Fourteenth Amendment, the state constitutions in effect when that Amendment was ratified (at least 22 of the 37 States protected the right to keep and bear arms), federal laws enacted during the same period, and other relevant historical evidence. 561 U.S., at 767–777. Only then did the opinion conclude that "the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." Id., at 778; see also id., at 822–850 (Thomas, J., concurring in part and concurring in judgment) (surveying history and reaching the same result under the Fourteenth Amendment's Privileges or Immunities Clause).
Timbs and McDonald concerned the question whether the Fourteenth Amendment protects rights that are expressly set out in the Bill of Rights, and it would be anomalous if similar historical support were not required when a putative right is not mentioned anywhere in the Constitution. Thus, in Glucksberg, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than 700 years of "Anglo-American common law tradition," 521 U.S., at 711, and made clear that a fundamental right must be "objectively, deeply rooted in this Nation's history and tradition," id., at 720–721.
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the "liberty" protected by the Due Process Clause because the term "liberty" alone provides little guidance. "Liberty" is a capacious term. As Lincoln once said: "We all declare for Liberty; but in using the same word we do not all mean the same thing." In a well-known essay, Isaiah Berlin reported that "[h]istorians of ideas" had cataloged more than 200 different senses in which the term had been used.
In interpreting what is meant by the Fourteenth Amendment's reference to "liberty," we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been "reluctant" to recognize rights that are not mentioned in the Constitution. Collins v. Harker Heights, 503 U.S. 115, 125 (1992). "Substantive due process has at times been a treacherous field for this Court," Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion), and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people's elected representatives. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225–226 (1985). As the Court cautioned in Glucksberg, "[w]e must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court." 521 U.S., at 720 (internal quotation marks and citation omitted).
On occasion, when the Court has ignored the "[a]ppropriate limits" imposed by "'respect for the teachings of history,'" Moore, 431 U.S., at 503 (plurality opinion), it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U.S. 45 (1905). The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term "liberty." When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.
B
1
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.
Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was 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 expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.
Roe either ignored or misstated this history, and Casey declined to reconsider Roe's faulty historical analysis. It is therefore important to set the record straight.
2 . . .
b
In this country, the historical record is similar. The "most important early American edition of Blackstone's Commentaries," District of Columbia v. Heller, 554 U.S. 570, 594 (2008), reported Blackstone's statement that abortion of a quick child was at least "a heinous misdemeanor," 2 St. George Tucker, Blackstone's Commentaries 129–130 (1803), and that edition also included Blackstone's discussion of the proto-felony-murder rule, 5 id., at 200–201. Manuals for justices of the peace printed in the Colonies in the 18th century typically restated the common-law rule on abortion, and some manuals repeated Hale's and Blackstone's statements that anyone who prescribed medication "unlawfully to destroy the child" would be guilty of murder if the woman died. See, e.g., J. Parker, Conductor Generalis 220 (1788); 2 R. Burn, Justice of the Peace, and Parish Officer 221–222 (7th ed. 1762) (English manual stating the same).
The few cases available from the early colonial period corroborate that abortion was a crime. See generally Dellapenna 215–228 (collecting cases). In Maryland in 1652, for example, an indictment charged that a man "Murtherously 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); Commonwealth 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, 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 endowed 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 embryo gives the first physical proof of life, no matter when it first received it" (emphasis added)).
The Solicitor General offers a different explanation of the basis for the quickening rule, namely, that before quickening the common law did not regard a fetus "as having a 'separate and independent existence.'" Brief for United States 26 (quoting Parker, 50 Mass., at 266). But the case on which the Solicitor General relies for this proposition also suggested that the criminal law's quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that "to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being." Ibid. (citing 1 Blackstone 129); see also Evans, 49 N. Y., at 89; Mills v. Commonwealth, 13 Pa. 631, 633 (1850); Morrow v. Scott, 7 Ga. 535, 537 (1849); Hall v. Hancock, 32 Mass. 255, 258 (1834); Thellusson v. Woodford, 4 Ves. 227, 321–322, 31 Eng. Rep. 117, 163 (1789). . . .
In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. See Appendix A, infra (listing state statutory provisions in chronological order). By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. See ibid. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910. See ibid.
The trend in the Territories that would become the last 13 States was similar: All of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico). See Appendix B, infra; see also Casey, 505 U.S., at 952 (Rehnquist, C. J., concurring in judgment in part and dissenting in part); Dellapenna 317–319. By the end of the 1950s, according to the Roe Court's own count, statutes in all but four States and the District of Columbia prohibited abortion "however and whenever performed, unless done to save or preserve the life of the mother." 410 U.S., at 139.
This overwhelming consensus endured until the day Roe was decided. At that time, also by the Roe Court's own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother. See id., at 118, and n. 2 (listing States). And though Roediscerned a "trend toward liberalization" in about "one-third of the States," those States still criminalized some abortions and regulated them more stringently than Roe would allow. Id., at 140, and n. 37; Tribe 2. In short, the "Court's opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 793 (1986) (White, J., dissenting).
d
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: "Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice]." 521 U.S., at 719.
3
Respondents and their amici have no persuasive answer to this historical evidence.
Neither respondents nor the Solicitor General disputes the fact that by 1868 the vast majority of States criminalized abortion at all stages of pregnancy. See Brief for Petitioners 12–13; see also Brief for American Historical Association et al. as Amici Curiae 27–28, and nn. 14–15 (conceding that 26 out of 37 States prohibited abortion before quickening); Tr. of Oral Arg. 74–75 (respondents' counsel conceding the same). Instead, respondents are forced to argue that it "does [not] matter that some States prohibited abortion at the time Roe was decided or when the Fourteenth Amendment was adopted." Brief for Respondents 21. But that argument flies in the face of the standard we have applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment.
Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century—no state constitutional provision, no statute, no judicial decision, no learned treatise. The earliest sources called to our attention are a few district court and state court decisions decided shortly before Roe and a small number of law review articles from the same time period.
A few of respondents' amici muster historical arguments, but they are very weak. The Solicitor General repeats Roe's claim that it is "'doubtful' . . . 'abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.'" Brief for United States 26 (quoting Roe, 410 U.S., at 136). But as we have seen, great common-law authorities like Bracton, Coke, Hale, and Blackstone all wrote that a post-quickening abortion was a crime—and a serious one at that. Moreover, Hale and Blackstone (and many other authorities following them) asserted 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.
Instead of following these authorities, Roe relied largely on two articles by a pro-abortion advocate who claimed that Coke had intentionally misstated the common law because of his strong anti-abortion views. These articles have been discredited, and it has come to light that even members of Jane Roe's legal team did not regard them as serious scholarship. An internal memorandum characterized this author's work as donning "the guise of impartial scholarship while advancing the proper ideological goals." Continued reliance on such scholarship is unsupportable.
The Solicitor General next suggests that history supports an abortion right because the common law's failure to criminalize abortion before quickening means that "at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages." Brief for United States 26–27; see also Brief for Respondents 21. But the insistence on quickening was not universal, see Mills, 13 Pa., at 633; State v. Slagle, 83 N. C. 630, 632 (1880), and regardless, the fact that many States in the 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 enacted violated a fundamental right. That is not surprising since common-law authorities had repeatedly condemned abortion and described it as an "unlawful" act without regard to whether it occurred before or after quickening. See supra, at 16–21. . . .
One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests), 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 terminating a pregnancy even in its earliest stage"). And we see no reason to discount the significance of the state laws in question based on these amici's suggestions about legislative motive.
C
1
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. Casey elaborated: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. . . .
Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, 388 U.S. 1 (1967); the right to marry while in prison, Turner v. Safley, 482 U.S. 78 (1987); the right to obtain contraceptives, Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), Carey v. Population Services Int'l, 431 U.S. 678 (1977); the right to reside with relatives, Moore v. East Cleveland, 431 U.S. 494 (1977); the right to make decisions about the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska, 262 U.S. 390 (1923); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U.S. 753 (1985), Washington v. Harper, 494 U.S. 210 (1990), Rochin v. California, 342 U.S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U.S. 558 (2003) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to marry a person of the same sex). See Brief for Respondents 18; Brief for United States 23–24.
These attempts to justify abortion through appeals to a broader right to autonomy and to define one's "concept of existence" prove too much. Casey, 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. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O'Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history. Id., at 1440, 1445.
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call "potential life" and what the law at issue in this case regards as the life of an "unborn human being." See Roe, 410 U.S., at 159 (abortion is "inherently different"); Casey, 505 U.S., at 852 (abortion is "a unique act"). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. . . .
D . . .
2
Because the dissent cannot argue that the abortion right is rooted in this Nation's history and tradition, it contends that the "constitutional tradition" is "not captured whole at a single moment," and that its "meaning gains content from the long sweep of our history and from successive judicial precedents." Post, at 18 (internal quotation marks omitted). This vague formulation imposes no clear restraints on what Justice White called the "exercise of raw judicial power," Roe, 410 U.S., at 222 (dissenting opinion), and while the dissent claims that its standard "does not mean anything goes," post, at 17, any real restraints are hard to discern.
The largely limitless reach of the dissenters' standard is illustrated by the way they apply it here. First, if the "long sweep of history" imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called "potential life." See supra, at 32.
So without support in history or relevant precedent, Roe's reasoning cannot be defended even under the dissent's proposed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted Roe's interpretation. Under the doctrine of stare decisis, those precedents are entitled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not "'an inexorable command.'" Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015). There are occasions when past decisions should be overruled, and as we will explain, this is one of them.
3
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.
That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State's interest in protecting prenatal life. The dissent repeatedly praises the "balance," post, at 2, 6, 8, 10, 12, that the viability line strikes between a woman's liberty interest and the State's interest in prenatal life. But for reasons we discuss later, see infra, at 50–54, 55–56, and given in the opinion of The Chief Justice, post, at 2–5 (opinion concurring in judgment), the viability line makes no sense. It was not adequately justified in Roe, and the dissent does not even try to defend it today. Nor does it identify any other point in a pregnancy after which a State is permitted to prohibit the destruction of a fetus.
Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation's legal traditions authorizes the Court to adopt that "'theory of life.'" Post, at 8.
III
We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. See Casey, 505 U.S., at 856 (joint opinion); see also Payne v. Tennessee, 501 U.S. 808, 828 (1991). It "reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation." Kimble, 576 U.S., at 455. It fosters "evenhanded" decision making by requiring that like cases be decided in a like manner. Payne, 501 U.S., at 827. It "contributes to the actual and perceived integrity of the judicial process." Ibid. And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past. "Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges." N. Gorsuch, A Republic, If You Can Keep It 217 (2019).
We have long recognized, however, that stare decisis is "not an inexorable command," Pearson v. Callahan, 555 U.S. 223, 233 (2009) (internal quotation marks omitted), and it "is at its weakest when we interpret the Constitution," Agostini v. Felton, 521 U.S. 203, 235 (1997). It has been said that it is sometimes more important that an issue "'be settled than that it be settled right.'" Kimble, 576 U.S., at 455 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)). But when it comes to the interpretation of the Constitution— the "great charter of our liberties," which was meant "to endure through a long lapse of ages," Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816) (opinion for the Court by Story, J.)—we place a high value on having the matter "settled right." In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. See Art. V; Kimble, 576 U.S., at 456. Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions. . . .
A
The nature of the Court's error. An erroneous interpretation of the Constitution is always important, but some are more damaging than others.
The infamous decision in Plessy v. Ferguson, was one such decision. It betrayed our commitment to "equality before the law." 163 U.S., at 562 (Harlan, J., dissenting). It was "egregiously wrong" on the day it was decided, see Ramos, 590 U.S., at ___ (opinion of Kavanaugh, J.) (slip op., at 7), and as the Solicitor General agreed at oral argument, it should have been overruled at the earliest opportunity, see Tr. of Oral Arg. 92–93.
Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.
Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but "raw judicial power," Roe, 410 U.S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State's interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since." Casey, 505 U.S., at 995–996 (opinion of Scalia, J.). Together, Roe and Casey represent an error that cannot be allowed to stand.
As the Court's landmark decision in West Coast Hotel illustrates, the Court has previously overruled decisions that wrongly removed an issue from the people and the democratic process. As Justice White later explained, "decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people's authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken." Thornburgh, 476 U.S., at 787 (dissenting opinion). . . .
1
a
The weaknesses in Roe's reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. See 410 U.S., at 163–164. Dividing pregnancy into three trimesters, the Court imposed special rules for each. During the first trimester, the Court announced, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." Id., at 164. After that point, a State's interest in regulating abortion for the sake of a woman's health became compelling, and accordingly, a State could "regulate the abortion procedure in ways that are reasonably related to maternal health." Ibid. Finally, in "the stage subsequent to viability," which in 1973 roughly coincided with the beginning of the third trimester, the State's interest in "the potentiality of human life" became compelling, and therefore a State could "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id., at 164–165.
This elaborate scheme was the Court's own brainchild. Neither party advocated the trimester framework; nor did either party or any amicus argue that "viability" should mark the point at which the scope of the abortion right and a State's regulatory authority should be substantially transformed. See Brief for Appellant and Brief for Appellee in Roe v. Wade, O. T. 1972, No. 70–18; see also C. Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade 127, 141 (2012).
b
Not only did this scheme resemble the work of a legislature, but the Court made little effort to explain how these rules could be deduced from any of the sources on which constitutional decisions are usually based. We have already discussed Roe's treatment of constitutional text, and the opinion failed to show that history, precedent, or any other cited source supported its scheme.
Roe featured a lengthy survey of history, but much of its discussion was irrelevant, and the Court made no effort to explain why it was included. For example, multiple paragraphs were devoted to an account of the views and practices of ancient civilizations where infanticide was widely accepted. See 410 U.S., at 130–132 (discussing ancient Greek and Roman practices).49 When it came to the most important historical fact—how the States regulated abortion when the Fourteenth Amendment was adopted—the Court said almost nothing. It allowed that States had tightened their abortion laws "in the middle and late 19th century," id., at 139, but it implied that these laws might have been enacted not to protect fetal life but to further "a Victorian social concern" about "illicit sexual conduct," id., at 148.
Roe's failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court erroneously suggested—contrary to Bracton, Coke, Hale, Blackstone, and a wealth of other authority—that the common law had probably never really treated post-quickening abortion as a crime. See id., at 136 ("[I]t now appear[s] doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus"). This erroneous understanding appears to have played an important part in the Court's thinking because the opinion cited "the lenity of the common law" as one of the four factors that informed its decision. Id., at 165.
After surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee. This included a lengthy account of the "position of the American Medical Association" and "[t]he position of the American Public Health Association," as well as the vote by the American Bar Association's House of Delegates in February 1972 on proposed abortion legislation. Id., at 141, 144, 146 (emphasis deleted). Also noted were a British judicial decision handed down in 1939 and a new British abortion law enacted in 1967. Id., at 137–138. The Court did not explain why these sources shed light on the meaning of the Constitution, and not one of them adopted or advocated anything like the scheme that Roe imposed on the country.
Finally, after all this, the Court turned to precedent. Citing a broad array of cases, the Court found support for a constitutional "right of personal privacy," id., at 152, but it conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference. See Whalen v. Roe, 429 U.S. 589, 599–600 (1977). Only the cases involving this second sense of the term could have any possible relevance to the abortion issue, and some of the cases in that category involved personal decisions that were obviously very, very far afield. See Pierce, 268 U.S. 510 (right to send children to religious school); Meyer, 262 U.S. 390 (right to have children receive German language instruction).
What remained was a handful of cases having something to do with marriage, Loving, 388 U.S. 1 (right to marry a person of a different race), or procreation, Skinner, 316 U.S. 535 (right not to be sterilized); Griswold, 381 U.S. 479 (right of married persons to obtain contraceptives); Eisenstadt, 405 U.S. 438 (same, for unmarried persons). But none of these decisions involved what is distinctive about abortion: its effect on what Roe termed "potential life."
When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were "consistent with" the following: (1) "the relative weights of the respective interests involved," (2) "the lessons and examples of medical and legal history," (3) "the lenity of the common law," and (4) "the demands of the profound problems of the present day." Roe, 410 U.S., at 165. Put aside the second and third factors, which were based on the Court's flawed account of history, and what remains are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. . . .
d
All in all, Roe's reasoning was exceedingly weak, and academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism. John Hart Ely famously wrote that Roe was "not constitutional law and g[ave] almost no sense of an obligation to try to be." Ely 947 (emphasis deleted). Archibald Cox, who served as Solicitor General under President Kennedy, commented that Roe "read[s] like a set of hospital rules and regulations" that "[n]either historian, layman, nor lawyer will be persuaded . . . are part of . . . the Constitution." The Role of the Supreme Court in American Government 113– 114 (1976). Laurence Tribe wrote that "even if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, 'interest-balancing' of the form the Court pursues fails to justify any of the lines actually drawn." Tribe 4–5. Mark Tushnet termed Roe a "totally unreasoned judicial opinion." Red, White, and Blue: A Critical Analysis of Constitutional Law 54 (1988). See also P. Bobbitt, Constitutional Fate 157 (1982); A. Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 110 (2000).
Despite Roe's weaknesses, its reach was steadily extended in the years that followed. The Court struck down laws requiring that second-trimester abortions be performed only in hospitals, Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 433–439 (1983); that minors obtain parental consent, Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74 (1976); that women give written consent after being informed of the status of the developing prenatal life and the risks of abortion, Akron, 462 U.S., at 442–445; that women wait 24 hours for an abortion, id., at 449–451; that a physician determine viability in a particular manner, Colautti, 439 U.S., at 390– 397; that a physician performing a post-viability abortion use the technique most likely to preserve the life of the fetus, id., at 397–401; and that fetal remains be treated in a humane and sanitary manner, Akron, 462 U.S., at 451–452.
Justice White complained that the Court was engaging in "unrestrained imposition of its own extraconstitutional value preferences." Thornburgh, 476 U.S., at 794 (dissenting opinion). And the United States as amicus curiae asked the Court to overrule Roe five times in the decade before Casey, see 505 U.S., at 844 (joint opinion), and then asked the Court to overrule it once more in Casey itself.
2
When Casey revisited Roe almost 20 years later, very little of Roe's reasoning was defended or preserved. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment's Due Process Clause. 505 U.S., at 846. The Court did not reaffirm Roe's erroneous account of abortion history. In fact, none of the Justices in the majority said anything about the history of the abortion right. And as for precedent, the Court relied on essentially the same body of cases that Roe had cited. Thus, with respect to the standard grounds for constitutional decision making—text, history, and precedent—Casey did not attempt to bolster Roe's reasoning.
The Court also made no real effort to remedy one of the greatest weaknesses in Roe's analysis: its much-criticized discussion of viability. The Court retained what it called Roe's "central holding"—that a State may not regulate pre-viability abortions for the purpose of protecting fetal life—but it provided no principled defense of the viability line. 505 U.S., at 860, 870–871. Instead, it merely rephrased what Roe had said, stating that viability marked the point at which "the independent existence of a second life can in reason and fairness be the object of state protection that now overrides the rights of the woman." 505 U.S., at 870. Why "reason and fairness" demanded that the line be drawn at viability the Court did not explain. And the Justices who authored the controlling opinion conspicuously failed to say that they agreed with the viability rule; instead, 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 trimester 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 important 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 support for the abortion right other than Roe's status as precedent, 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 intangible 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 important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—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 Union, 491 U.S. 164, 173 (1989); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 283–284 (1988). Casey's "undue burden" test has scored poorly on the workability scale.
1
Problems begin with the very concept of an "undue burden." As Justice Scalia noted in his Casey partial dissent, determining whether a burden is "due" or "undue" is "inherently standardless." 505 U.S., at 992; see also June Medical Services L. L. C. v. Russo, 591 U.S. ___, ___ (2020) (Gorsuch, J., dissenting) (slip op., at 17) ("[W]hether a burden 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 particular obstacle qualifies as "substantial" is often open to reasonable debate. In the sense relevant here, "substantial" 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. . . .
In addition to these problems, one more applies to all three rules. They all call on courts to examine a law's effect on women, but a regulation may have a very different impact on different women for a variety of reasons, including their places of residence, financial resources, family situations, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions. In order to determine whether a regulation presents a substantial obstacle to women, a court needs to know which set of women it should have in mind and how many of the women in this set must find that an obstacle is "substantial."
Casey provided no clear answer to these questions. It said that a regulation is unconstitutional if it imposes a substantial obstacle "in a large fraction of cases in which [it] is relevant," 505 U.S., at 895, but there is obviously no clear line between a fraction that is "large" and one that is not. Nor is it clear what the Court meant by "cases in which" a regulation is "relevant." These ambiguities have caused confusion and disagreement. Compare Whole Woman's Health v. Hellerstedt, 579 U.S. 582, 627–628 (2016), with id., at 666–667, and n. 11 (Alito, J., dissenting). . . .
3
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." Janus, 585 U.S., at ___ (slip op., at 38).
Casey has generated a long list of Circuit conflicts. Most recently, the Courts of Appeals have disagreed about whether the balancing test from Whole Woman's Health correctly states the undue-burden framework. They have disagreed on the legality of parental notification rules. They have disagreed about bans on certain dilation and evacuation procedures. They have disagreed about when an increase in the time needed to reach a clinic constitutes an undue burden. And they have disagreed on whether a State may regulate abortions performed because of the fetus's race, sex, or disability.
The Courts of Appeals have experienced particular difficulty in applying the large-fraction-of-relevant-cases test. They have criticized the assignment while reaching unpredictable results.58 And they have candidly outlined Casey's many other problems.
Casey's "undue burden" test has proved to be unworkable. "[P]lucked from nowhere," 505 U.S., at 965 (opinion of Rehnquist, C. J.), it "seems calculated to perpetuate give-it-a-try litigation" before judges assigned an unwieldy and in- appropriate task. Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 551 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). Continued adherence to that standard would undermine, not advance, the "evenhanded, predictable, and consistent development of legal principles." Payne, 501 U.S., at 827. . . .
IV
Having shown that traditional stare decisis factors do not weigh in favor of retaining Roe or Casey, we must address one final argument that featured prominently in the Casey plurality opinion.
The argument was cast in different terms, but stated simply, it was essentially as follows. The American people's belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not "social and political pressures." 505 U.S., at 865. There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial "watershed" decision, such as Roe. 505 U.S., at 866–867. A decision overruling Roe would be perceived as having been made "under fire" and as a "surrender to political pressure," 505 U.S., at 867, and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe, see 505 U.S., at 869.
This analysis starts out on the right foot but ultimately veers off course. The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work. Cf. Texas v. Johnson, 491 U.S. 397 (1989); Brown, 347 U.S. 483. That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision. As Chief Justice Rehnquist explained, "The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task." Casey, 505 U.S., at 963 (opinion concurring in judgment in part and dissenting in part). In suggesting otherwise, the Casey plurality went beyond this Court's role in our constitutional system.
The Casey plurality "call[ed] the contending sides of a national controversy to end their national division," and claimed the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying that the matter was closed. Id., at 867. That unprecedented claim exceeded the power vested in us by the Constitution. As Alexander Hamilton famously put it, the Constitution gives the judiciary "neither Force nor Will." The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Our sole authority is to exercise "judgment"—which is to say, the authority to judge what the law means and how it should apply to the case at hand. Ibid. The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law. That is not how stare decisis operates.
The Casey plurality also misjudged the practical limits of this Court's influence. Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe "inflamed" a national issue that has remained bitterly divisive for the past half century. Casey, 505 U.S., at 995 (opinion of Scalia, J.); see also R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 1208 (1992) (Roe may have "halted a political process," "prolonged divisiveness," and "deferred stable settlement of the issue"). And for the past 30 years, Casey has done the same.
Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court's inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise "raw judicial power." Roe, 410 U.S., at 222 (White, J., dissenting).
We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
V
A . . .
3
Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4–5, 26–27, n. 8. But we have stated unequivocally that "[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion." Supra, at 66. We have also explained why that is so: rights 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." Supra, at 32. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.
B . . .
2
The concurrence's most fundamental defect is its failure to offer any principled basis for its approach. The concurrence 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 doctrine 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 decisis grounds.
The concurrence concedes that its approach would "not be available" if "the rationale of Roe and Casey were inextricably entangled with and dependent upon the viability standard." Post, at 7. But the concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be "discarded" without disturbing 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 proscribe 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., at 63–64. If viability was not an essential part of the rule adopted in Roe, the Court would have had no need to make that comparison.
The holding in Colautti v. Franklin, 439 U.S. 379, is even more instructive. In that case, the Court noted that prior cases had "stressed viability" and reiterated that "[v]iability is the critical point" under Roe. 439 U.S., at 388–389. It then struck down Pennsylvania's definition of viability, id., at 389–394, and it is hard to see how the Court could have done that if Roe's discussion of viability was not part of its holding.
When the Court reconsidered Roe in Casey, it left no doubt about the importance of the viability rule. It described the rule as Roe's "central holding," 505 U.S., at 860, and repeatedly stated that the right it reaffirmed was "the right of the woman to choose to have an abortion before viability." Id., at 846 (emphasis added). See id., at 871 ("The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce" (emphasis added)); id., at 872 (A "woman has a right to choose to terminate or continue her pregnancy before viability" (emphasis added)); id., at 879 ("[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability" (emphasis added)).
Our subsequent cases have continued to recognize the centrality of the viability rule. See Whole Women's Health, 579 U.S., at 589–590 ("[A] provision of law is constitutionally invalid, if the 'purpose or effect' of the provision 'is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability'" (emphasis deleted and added)); id., at 627 ("[W]e now use 'viability' as the relevant point at which a State may begin limiting women's access to abortion for reasons unrelated to maternal health" (emphasis added)).
Not only is the new rule proposed by the concurrence inconsistent with Casey's unambiguous "language," post, at 8, it is also contrary to the judgment in that case and later abortion cases. In Casey, the Court held that Pennsylvania's spousal-notification provision was facially unconstitutional, not just that it was unconstitutional as applied to abortions sought prior to the time when a woman has had a reasonable opportunity to choose. See 505 U.S., at 887–898. The same is true of Whole Women's Health, which held that certain rules that required physicians performing abortions to have admitting privileges at a nearby hospital were facially unconstitutional because they placed "a substantial obstacle in the path of women seeking a previability abortion." 579 U.S., at 591 (emphasis added).
For all these reasons, stare decisis cannot justify the new "reasonable opportunity" rule propounded by the concurrence. If that rule is to become the law of the land, it must stand on its own, but the concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is "'deeply rooted in this Nation's history and tradition'" and "'implicit in the concept of ordered liberty.'" Glucksberg, 521 U.S., at 720–721. Nor does it propound any other theory that could show that the Constitution supports its new rule. And if the Constitution protects a woman's right to obtain an abortion, the opinion does not explain why that right should end after the point at which all "reasonable" women will have decided whether to seek an abortion. While the concurrence is moved by a desire for judicial minimalism, "we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right." Citizens United, 558 U.S., at 375 (Roberts, C. J., concurring). For the reasons that we have explained, the concurrence's approach is not.
3
The concurrence would "leave for another day whether to reject any right to an abortion at all," post, at 7, but "another 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 Reproductive Health v. Slatery, 14 F. 4th, at 414 (considering law with bans "at cascading intervals of two to three weeks" beginning 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 deadlines 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 suggested by the concurrence, we would be faced with the difficult problem of spelling out what it means. For example, if the period required to give women a "reasonable" opportunity to obtain an abortion were pegged, as the concurrence seems to suggest, at the point when a certain percentage 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 and the country—to face up to the real issue without further delay.
VI
We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard.
A
Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our Nation's history. See supra, at 8–39.
It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot "substitute their social and economic beliefs for the judgment of legislative bodies." Ferguson, 372 U.S., at 729–730; see also Dandridge v. Williams, 397 U.S. 471, 484–486 (1970); United States v. Carolene Products Co., 304 U.S. 144, 152 (1938). That respect for a legislature's judgment applies even when the laws at issue concern matters of great social significance and moral substance. See, e.g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365–368 (2001) ("treatment of the disabled"); Glucksberg, 521 U.S., at 728 ("assisted suicide"); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 32–35, 55 (1973) ("financing public education").
A law regulating abortion, like other health and welfare laws, is entitled to a "strong presumption of validity." Heller v. Doe, 509 U.S. 312, 319 (1993). It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Id., at 320; FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993); New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 491 (1955). These legitimate interests include respect for and preservation of prenatal life at all stages of development, Gonzales, 550 U.S., at 157–158; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability. See id., at 156–157; Roe, 410 U.S., at 150; cf. Glucksberg, 521 U.S., at 728– 731 (identifying similar interests).
B
These legitimate interests justify Mississippi's Gestational Age Act. Except "in a medical emergency or in the case of a severe fetal abnormality," the statute prohibits abortion "if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks." Miss. Code Ann. §41–41–191(4)(b). The Mississippi Legislature's findings recount the stages of "human prenatal development" and assert the State's interest in "protecting the life of the unborn." §2(b)(i). The legislature also found that abortions performed after 15 weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure "for nontherapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession." §2(b)(i)(8); see also Gonzales, 550 U.S., at 135–143 (describing such procedures). These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents' constitutional challenge must fail.
VII
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered. . . .
Linked resources
Items linked to this Document
| Title | Description | Class |
|---|---|---|
 From Back Alley to the Border: Criminal Abortion in the 20th Century U.S. |
This teaching module looks at the history of criminal abortion in the 20th century, featuring a webinar with Alicia Gutierrez-Romine, author of the 2020 book, From Back Alley to the Border: Criminal Abortion in California, 1920-1969. |
- Title
- Dobbs v. Jackson Women's Health Organization (2022)
- Description
- In the ruling it this case, the Supreme Court took away the constitutional right to abortion based on the right to privacy recognized by Roe v. Wade. This was the first time a Supreme Court decision took away a fundamental right from the people.
- Excerpted
- Yes
- Date
- 2022-06-24
- Author
- United States. Supreme Court
- Subject
- Women
- Procedural History
- U.S. Supreme Court; U.S. Court of Appeals for the Fifth Circuit; U.S. District Court for the Southern District of Mississippi
- Document Type
- Supreme Court Case
- Document Category
- Primary Source
- Bluebook Citation
- Dobbs v. Jackson Women's Health Organization, 597 U.S. ____ (2022)
- Digital Repository
- supremecourt.gov
- Title
- Dobbs v. Jackson Women's Health Organization (2022)
- Description
- In the ruling it this case, the Supreme Court took away the constitutional right to abortion based on the right to privacy recognized by Roe v. Wade. This was the first time a Supreme Court decision took away a fundamental right from the people.
- Excerpted
- Yes
- Date
- 2022-06-24
- Author
- United States. Supreme Court
- Subject
- Women
- Procedural History
- U.S. Supreme Court; U.S. Court of Appeals for the Fifth Circuit; U.S. District Court for the Southern District of Mississippi
- Document Type
- Supreme Court Case
- Document Category
- Primary Source
- Bluebook Citation
- Dobbs v. Jackson Women's Health Organization, 597 U.S. ____ (2022)
- Digital Repository
- supremecourt.gov