Majority opinion (written by
Justice Samuel Alito):
We hold that
Roe and
Casey must be overruled. The
Constitution makes no reference to abortion, and no such right is
implicitly protected by any constitutional provision, including the one on
which the defenders of
Roe and
Casey now chiefly
rely – the Due Process Clause of the Fourteenth Amendment. That provision
has been held to guarantee some rights that are not mentioned in the
Constitution, but any such right must be “deeply rooted in this Nation’s
history and tradition” and “implicit in the concept of ordered liberty.”
The right to abortion does not fall within this category. 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 . . . 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. . . .
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.” That is what the Constitution and the rule of law demand. .
. .
***
[On whether the Constitution protects an individual’s right to
an abortion, even if voters in the state where that individual lives
want to legislate against that right]
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. 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. .
. .
We briefly address one additional constitutional provision that some . .
. offer as yet another potential home for the abortion right: the
Fourteenth Amendment’s Equal Protection Clause. 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
“goal of preventing abortion” does not constitute “invidiously
discriminatory animus” against women. Accordingly, laws . . . are
governed by the same standard of review as other health and safety
measures. . . .
[The Fourteenth Amendment’s Due Process Clause only protects two
categories of rights:]
The first consists of rights guaranteed by the first eight Amendments. . .
. The second category . . . 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.” . . .
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. . . .
We must ask what the Fourteenth Amendment means by the term “liberty.”
When we engage in that
[historical] inquiry in the present case,
the clear answer is that the Fourteenth Amendment does not protect the
right to an abortion. . . .
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. . . . 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.
[That is, in
common law, abortion was “criminal” (punishable as a crime) in later
stages of pregnancy, and in earlier stages, it was “unlawful” (not
authorized but not something that anyone would be punished for).
“Quickening,” or the point when a pregnant woman could feel the fetus’s
movement as separate from the internal workings of her own body, was the
distinguishing point. Thus, abortions before about the 18th week
of pregnancy were “unlawful” but not “criminal.”] 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. . . .
[Even under the earlier common law,] although a pre-quickening
abortion was not itself considered homicide, it does not follow that
abortion was permissible at common law – much less that abortion was a
legal right. . . .
In this country during the 19th century, the vast majority of the States
enacted statutes criminalizing abortion at all stages of pregnancy.
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. Of the nine
States that had not yet criminalized abortion at all stages, all but one
did so by 1910. 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). . .
.
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. . . .
Ordered liberty sets limits and defines the boundary between competing
interests.
Roe and
Casey each struck a particular
balance between the interests of a woman who wants an abortion and the
interests of what they termed “potential life.” But the people of
the various States may evaluate those interests differently. In some
States, voters may believe that the abortion right should be even more
extensive than the right that
Roe and
Casey recognized.
Voters in other States may wish to impose tight restrictions based on
their belief that abortion destroys an “unborn human being.” Our
Nation’s historical understanding of ordered liberty does not prevent the
people’s elected representatives from deciding how abortion should be
regulated.
Nor does the right to obtain an abortion have a sound basis in precedent
[because
the precedents that were used to support the constitutional right to an
abortion are not relevant]. . . . 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.” 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
[the rights discussed in
the cases used as precedent] in any way. . . .
***
[On the principle of stare decisis]
No Justice of this Court has ever argued that the Court should never
overrule a constitutional decision, but overruling a precedent is a
serious matter. It is not a step that should be taken lightly. . . .
In this case, five factors weigh strongly in favor of overruling
Roe
and
Casey: the nature of their error, the quality of their
reasoning, the “workability” of the rules they imposed on the country,
their disruptive effect on other areas of the law, and the absence of
concrete reliance. . . . .
[On stare decisis and Roe’s and Casey’s
reasoning]
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,”
the Court usurped the power to address a question of profound moral and
social importance that the Constitution unequivocally leaves for the
people. . . .
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. . . .
[On stare decisis and reliance interests]
We . . . consider whether overruling
Roe and
Casey will
upend substantial reliance interests
[that is, whether overruling a
constitutional decision that people have relied on would cause a special
hardship.]
[As Casey
put it,] “reproductive planning could take
virtually immediate account of any sudden restoration of state authority
to ban abortions.” . . . We agree with the
Casey plurality
that conventional, concrete reliance interests are not present here.
When a concrete reliance interest is asserted
[as with business
contracts], courts are equipped to evaluate the claim, but . . .
[relying
on Roe
in an intangible way] is hard for anyone – and in
particular, for a court – to assess, namely, the effect of the abortion
right on society and in particular on the lives of women. . . .
The contending sides in this case make impassioned and conflicting
arguments about the effects of the abortion right on the lives of women.
The contending sides also make conflicting arguments about the status of
the fetus. This Court has neither the authority nor the expertise to
adjudicate those disputes. . . . Our decision returns the issue of
abortion to those legislative bodies, and it allows women on both sides of
the abortion issue to seek to affect the legislative process by
influencing public opinion, lobbying legislators, voting, and running for
office.
The Solicitor General suggests that overruling
[Roe] would
“threaten the Court’s precedents holding that the Due Process Clause
protects other rights.” That is not correct . . . . As even
the
Casey plurality recognized, “abortion is a unique act”
because it terminates “life or potential life.” And to ensure that
our decision is not misunderstood or mischaracterized, we emphasize that
our decision concerns the constitutional right to abortion and no other
right. Nothing in this opinion should be understood to cast doubt on
precedents that do not concern abortion. . . .
***
We cannot allow our decisions to be affected by any extraneous influences
such as concern about the public’s reaction to our work. 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.” . . .
A law regulating abortion, like other health and welfare laws, is entitled
to a “strong presumption of validity.” It must be sustained if there
is a rational basis on which the legislature could have thought that it
would serve legitimate state interests. These legitimate interests
include respect for and preservation of prenatal life at all stages of
development; 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.
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.
Dissenting opinion, by
Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena
Kagan:
For half a century,
Roe v. Wade (1973), and
Planned
Parenthood of Southeastern Pa. v. Casey (1992), have protected the
liberty and equality of women.
Roe held, and
Casey reaffirmed,
that the Constitution safeguards a woman’s right to decide for herself
whether to bear a child.
Roe held, and
Casey reaffirmed,
that in the first stages of pregnancy, the government could not make that
choice for women. The government could not control a woman’s body or the
course of a woman’s life: It could not determine what the woman’s future
would be. . . .
Whatever the exact scope of the coming laws, one result of today’s
decision is certain: the curtailment of women’s rights, and of their
status as free and equal citizens. . . . As of today, this Court holds, a
State can always force a woman to give birth, prohibiting even the
earliest abortions. A State can thus transform what, when freely
undertaken, is a wonder into what, when forced, may be a nightmare. . . .
***
[On Roe and Casey’s connections to other
cases]
Roe and
Casey were from the beginning, and are even
more now, embedded in core constitutional concepts of individual freedom,
and of the equal rights of citizens to decide on the shape of their lives.
Those legal concepts, one might even say, have gone far toward defining
what it means to be an American. For in this Nation, we do not believe
that a government controlling all private choices is compatible with a
free people. . . . We believe in a Constitution that puts some issues off
limits to majority rule. Even in the face of public opposition, we uphold
the right of individuals – yes, including women – to make their own
choices and chart their own futures. Or at least, we did once. . . .
The majority
[insists] that
Roe and
Casey, and
we in defending them, are dismissive of a “State’s interest in protecting
prenatal life.” Nothing could get those decisions more wrong. . .
.
Roe and
Casey invoked powerful state interests
in that protection, operative at every stage of the pregnancy and
overriding the woman’s liberty after viability. The strength of those
state interests is exactly why the Court allowed greater restrictions on
the abortion right than on other rights deriving from the Fourteenth
Amendment. But what
Roe and
Casey also
recognized – which today’s majority does not – is that a woman’s freedom
and equality are likewise involved. . . .
The constitutional regime we have lived in for the last 50 years
recognized competing interests, and sought a balance between them. The
constitutional regime we enter today erases the woman’s interest and
recognizes only the State’s (or the Federal Government’s). . . .
The majority makes this change based on a single question: Did the
reproductive right recognized in
Roe and
Casey exist
in “1868, the year when the Fourteenth Amendment was ratified”? The
majority says (and with this much we agree) that the answer to this
question is no: In 1868, there was no nationwide right to end a pregnancy,
and no thought that the Fourteenth Amendment provided one. . . .
Embarrassingly for the majority – early law in fact does provide some
support for abortion rights. Common-law authorities did not treat abortion
as a crime before “quickening” – the point when the fetus moved in the
womb. And early American law followed the common-law rule. So the criminal
law of that early time might be taken as roughly consonant with
Roe’s
and
Casey’s different treatment of early and late abortions. . .
.
The majority’s core legal postulate, then, is that we in the 21st century
must read the Fourteenth Amendment just as its ratifiers did. And that is
indeed what the majority emphasizes over and over again. . . . If the
ratifiers did not understand something as central to freedom, then neither
can we. Or said more particularly: If those people did not understand
reproductive rights as part of the guarantee of liberty conferred in the
Fourteenth Amendment, then those rights do not exist.
As an initial matter, note a mistake in the just preceding sentence. We
referred there to the “people” who ratified the Fourteenth Amendment: What
rights did those “people” have in their heads at the time? But, of course,
“people” did not ratify the Fourteenth Amendment. Men did. So it is
perhaps not so surprising that the ratifiers were not perfectly attuned to
the importance of reproductive rights for women’s liberty, or for their
capacity to participate as equal members of our Nation. Indeed, the
ratifiers – both in 1868 and when the original Constitution was approved
in 1788 – did not understand women as full members of the community
embraced by the phrase “We the People.” . . .
[They] did not
perceive women as equals, and did not recognize women’s rights. When the
majority says that we must read our foundational charter as viewed at the
time of ratification, it consigns women to second-class citizenship.
So how is it that, as
Casey said, our Constitution, read now,
grants rights to women, though it did not in 1868? . . . . The answer is
that this Court has rejected the majority’s pinched view of how to read
our Constitution. “The Founders . . . knew they were writing a document
designed to apply to ever-changing circumstances over centuries.” . . .
That is indeed why our Constitution is written as it is. The Framers (both
in 1788 and 1868) understood that the world changes. So they did not
define rights by reference to the specific practices existing at the time.
Instead, the Framers defined rights in general terms, to permit future
evolution in their scope and meaning. And over the course of our history,
this Court has taken up the Framers’ invitation. It has kept true to the
Framers’ principles by applying them in new ways, responsive to new
societal understandings and conditions. . . .
The Fourteenth Amendment’s ratifiers did not think it gave black and white
people a right to marry each other. To the contrary, contemporaneous
practice deemed that act quite as unprotected as abortion. Yet the Court
in
Loving v. Virginia (1967), read the Fourteenth Amendment to
embrace the Lovings’ union. . . . The Constitution does not freeze for all
time the original view of what . . .
[constitutional] rights
guarantee, or how they apply. . . .
“No right,” in this Court’s time-honored view, “is held more sacred, or is
more carefully guarded,” than “the right of every individual to the
possession and control of his own person.” Or to put it more simply:
Every one, including women, owns their own bodies. So the Court has
restricted the power of government to interfere with a person’s medical
decisions or compel her to undergo medical procedures or treatments. . . .
Casey recognized the “doctrinal affinity” between those
precedents and
Roe. And that doctrinal affinity is born of
a factual likeness. There are few greater incursions on a body than
forcing a woman to complete a pregnancy and give birth. For every woman,
those experiences involve all manner of physical changes, medical
treatments (including the possibility of a cesarean section), and medical
risk. Just as one example, an American woman is 14 times more likely to
die by carrying a pregnancy to term than by having an
abortion. That women happily undergo those burdens and hazards
of their own accord does not lessen how far a State impinges on a woman’s
body when it compels her to bring a pregnancy to term. And for some women,
as
Roe recognized, abortions are medically necessary to prevent
harm. The majority does not say – which is itself ominous – whether
a State may prevent a woman from obtaining an abortion when she and her
doctor have determined it is a needed medical treatment. . . .
[The majority asserts that] “nothing in this opinion should be
understood to cast doubt on precedents that do not concern
abortion.” That right is unique, the majority asserts, “because
abortion terminates life or potential life.” So the majority depicts
today’s decision as “a restricted railroad ticket, good for this day and
train only.” Should the audience for these too-much-repeated protestations
be duly satisfied? We think not.
The first problem with the majority’s account comes from Justice Thomas’s
concurrence – which makes clear he is not with the program. In
saying that nothing in today’s opinion casts doubt on non-abortion
precedents, Justice Thomas explains, he means only that they are not at
issue in this very case. But he lets us know what he wants to do
when they are. “In future cases,” he says, “we should reconsider all of
this Court’s substantive due process precedents, including
Griswold,
Lawrence, and
Obergefell.” And when we reconsider them?
Then “we have a duty” to “overrule these demonstrably erroneous
decisions.” So at least one Justice is planning to use the ticket of
today’s decision again and again and again. . . .
According to the majority, no liberty interest is present – because
(and only because) the law offered no protection to the woman’s choice in
the 19th century. But here is the rub. The law also did not then (and
would not for ages) protect a wealth of other things. It did not protect
the rights recognized in
Lawrence and
Obergefell to
same-sex intimacy and marriage. It did not protect the right recognized in
Loving to marry across racial lines. It did not protect the
right recognized in
Griswold to contraceptive use. For that
matter, it did not protect the right recognized in
Skinner v.
Oklahoma (1942), not to be sterilized without consent. So if the
majority is right in its legal analysis, all those decisions were wrong,
and all those matters properly belong to the States too – whatever the
particular state interests involved. And if that is true, it is impossible
to understand (as a matter of logic and principle) how the majority can
say that its opinion today does not threaten – does not even “undermine” –
any number of other constitutional rights. . . .
Assume the majority is sincere in saying, for whatever reason, that it
will go so far and no further. Scout’s honor. Still, the future
significance of today’s opinion will be decided in the future. And law
often has a way of evolving without regard to original intentions – a way
of actually following where logic leads, rather than tolerating
hard-to-explain lines. Rights can expand in that way. . . . Rights
can contract in the same way and for the same reason – because whatever
today’s majority might say, one thing really does lead to another. We
fervently hope that does not happen because of today’s decision. . . . But
we cannot understand how anyone can be confident that today’s opinion will
be the last of its kind. . . .
***
By overruling
Roe, Casey, and more than 20 cases reaffirming or
applying the constitutional right to abortion, the majority abandons
stare
decisis, a principle central to the rule of law.
“Stare
decisis” means “to stand by things decided.” . . .
Stare
decisis also “contributes to the integrity of our constitutional
system of government” by ensuring that decisions “are founded in the law
rather than in the proclivities of individuals.” . . .
[It]
means the Court may not overrule a decision, even a constitutional one,
without a “special justification.” . . .
[In this case,]
nothing – and in particular, no significant legal or factual change –
supports overturning a half-century of settled law giving women control
over their reproductive lives.
[On stare decisis and workability]
[One justification for overturning a precedent is if the rule it
created was “unworkable,” but the rule created by Dobbs is not more
workable than the one rule created by Roe.] The majority says a law
regulating or banning abortion “must be sustained if there is a rational
basis on which the legislature could have thought that it would serve
legitimate state interests.” And the majority lists interests like
“respect for and preservation of prenatal life,” “protection of maternal
health,” elimination of certain “medical procedures,” “mitigation of fetal
pain,” and others. This Court will surely face critical questions
about how that test applies. Must a state law allow abortions when
necessary to protect a woman’s life and health? And if so, exactly when?
How much risk to a woman’s life can a State force her to incur, before the
Fourteenth Amendment’s protection of life kicks in? Suppose a patient with
pulmonary hypertension has a 30-to-50 percent risk of dying with ongoing
pregnancy; is that enough? And short of death, how much illness or injury
can the State require her to accept, consistent with the Amendment’s
protection of liberty and equality? . . .
In short, the majority does not save judges from unwieldy tests or
extricate them from the sphere of controversy. To the contrary, it
discards a known, workable, and predictable standard in favor of something
novel and probably far more complicated. . . .
[On legal and social changes since Roe
and Casey]
When overruling constitutional precedent, the Court has almost always
pointed to major legal or factual changes undermining a decision’s
original basis. . . . . But it is not so today. Although nodding to some
arguments others have made about “modern developments,” the majority does
not really rely on them, no doubt seeing their slimness. . . . In
the end, the majority throws longstanding precedent to the winds without
showing that anything significant has changed to justify its radical
reshaping of the law. . . .
No subsequent factual developments have undermined
Roe and
Casey.
Women continue to experience unplanned pregnancies and unexpected
developments in pregnancies. Pregnancies continue to have enormous
physical, social, and economic consequences. Even an uncomplicated
pregnancy imposes significant strain on the body, unavoidably involving
significant physiological change and excruciating pain. For some women,
pregnancy and childbirth can mean life-altering physical ailments or even
death. . . . Pregnancy and childbirth may also impose large-scale
financial costs. The majority briefly refers to arguments about changes in
laws relating to healthcare coverage, pregnancy discrimination, and family
leave. Many women, however, still do not have adequate healthcare
coverage before and after pregnancy; and, even when insurance coverage is
available, healthcare services may be far away. Women also continue to
face pregnancy discrimination that interferes with their ability to earn a
living. Paid family leave remains inaccessible to many who need it most. .
. .
In sum, the majority can point to neither legal nor factual developments
in support of its decision. Nothing that has happened in this country or
the world in recent decades undermines the core insight of
Roe
and
Casey. . . .
In support of its holding, the majority invokes . . . watershed cases
overruling prior constitutional
precedents.
[But those cases do not support overturning Roe
and
Casey
. Two of those cases, West Virginia Board of
Education v. Barnette
(1943) and Brown v. the Board of Education
(1954),] protected individual rights with a strong
basis in the Constitution’s most fundamental commitments; they did not, as
the majority does here, take away a right that individuals have held, and
relied on, for 50 years. To take that action based on a new and bare
majority’s declaration that two Courts got the result egregiously wrong?
And to justify that action by reference . . . to Brown – a case in which
the Chief Justice . . . wrote an (11-page) opinion in which the entire
Court could speak with one voice?. . . .
[On stare decisis and reliance interests]
The reasons for retaining
Roe and
Casey gain further
strength from the overwhelming reliance interests those decisions have
created. By characterizing
Casey’s
[arguments about
the consequences of overturning a right that individuals have relied on]
as “generalized assertions about the national psyche,”
[the majority]
. . . reveals how little it knows or cares about women’s lives or about
the suffering its decision will cause. . . .
For half a century now, in
Casey’s words, “the ability of women
to participate equally in the economic and social life of the Nation has
been facilitated by their ability to control their reproductive
lives.” Indeed, all women now of childbearing age have grown up
expecting that they would be able to avail themselves of
Roe’s
and
Casey’s protections.
The majority’s response to these obvious points exists far from the
reality American women actually live. The majority proclaims that “
‘reproductive planning could take virtually immediate account of any
sudden restoration of state authority to ban abortions.’ ” The facts
are: 45 percent of pregnancies in the United States are unplanned.
Even the most effective contraceptives fail, and effective contraceptives
are not universally accessible. Not all sexual activity is
consensual and not all contraceptive choices are made by the party who
risks pregnancy. The Mississippi law at issue here, for example, has
no exception for rape or incest, even for underage women. . . .
Finally, the expectation of reproductive control is integral to many
women’s identity and their place in the Nation. That expectation
helps define a woman as an “equal citizen,” with all the
rights, privileges, and obligations that status entails. It reflects
that she is an autonomous person, and that society and the law recognize
her as such. Like many constitutional rights, the right to choose situates
a woman in relationship to others and to the government. It helps define a
sphere of freedom, in which a person has the capacity to make choices free
of government control. As
Casey recognized, the right “orders”
her “thinking” as well as her “living.” Beyond any individual choice about
residence, or education, or career, her whole life reflects the control
and authority that the right grants.
Withdrawing a woman’s right to choose whether to continue a pregnancy does
not mean that no choice is being made. It means that a majority of today’s
Court has wrenched this choice from women and given it to the States. To
allow a State to exert control over one of “the most intimate and personal
choices” a woman may make is not only to affect the course of her life,
monumental as those effects might be. It is to alter her “views of
herself” and her understanding of her “place in society” as someone with
the recognized dignity and authority to make these choices. Women
have relied on
Roe and
Casey in this way for 50
years. Many have never known anything else. When
Roe and
Casey
disappear, the loss of power, control, and dignity will be immense.
. . .
By disclaiming any need to consider broad swaths of individuals’
interests, the Court arrogates to itself the authority to overrule
established legal principles without even acknowledging the costs of its
decisions for the individuals who live under the law, costs that this
Court’s
stare decisis doctrine instructs us to privilege when
deciding whether to change course.
The majority claims that the reliance interests women have in
Roe and
Casey are too “intangible” for the Court to consider, even if it
were inclined to do so. This is to ignore as judges what we know as
men and women. The interests women have in
Roe and
Casey are
perfectly, viscerally concrete. Countless women will now make different
decisions about careers, education, relationships, and whether to try to
become pregnant than they would have when
Roe served as a
backstop. Other women will carry pregnancies to term, with all the costs
and risk of harm that involves, when they would previously have chosen to
obtain an abortion. For millions of women,
Roe and
Casey have
been critical in giving them control of their bodies and their lives.
Closing our eyes to the suffering today’s decision will impose will not
make that suffering disappear. . . .
Stare decisis requires that
the Court calculate the costs of a decision’s repudiation on those who
have relied on the decision, not on those who have disavowed it. . . .
Rescinding an individual right in its entirety and conferring it on the
State, an action the Court takes today for the first time in history,
affects all who have relied on our constitutional system of government and
its structure of individual liberties protected from state oversight.
Roe
and
Casey have of course aroused controversy and
provoked disagreement. But the right those decisions conferred and
reaffirmed is part of society’s understanding of constitutional law and of
how the Court has defined the liberty and equality that women are entitled
to claim. After today, young women will come of age with fewer rights than
their mothers and grandmothers had. The majority accomplishes that result
without so much as considering how women have relied on the right to
choose or what it means to take that right away. The majority’s refusal
even to consider the life-altering consequences of reversing
Roe and
Casey is a stunning indictment of its decision.
***
[On stare decisis for controversial issues]
One last consideration counsels against the majority’s ruling: the very
controversy surrounding
Roe and
Casey. The majority
accuses
Casey of acting outside the bounds of the law to quell
the conflict over abortion – of imposing an unprincipled “settlement” of
the issue in an effort to end “national division.” But that is not
what
Casey did. As shown above,
Casey applied
traditional principles of
stare decisis – which the majority
today ignores – in reaffirming
Roe.
Casey carefully
assessed changed circumstances (none) and reliance interests (profound).
It considered every aspect of how
Roe’s framework operated. It
adhered to the law in its analysis, and it reached the conclusion that the
law required. True enough that
Casey took notice of the
“national controversy” about abortion: The Court knew in 1992, as it did
in 1973, that abortion was a “divisive issue.” But
Casey’s
reason for acknowledging public conflict was the exact opposite of what
the majority insinuates.
Casey addressed the national
controversy in order to emphasize how important it was, in that case of
all cases, for the Court to stick to the law. Would that today’s majority
had done likewise. . . .
We fear that today’s decision, departing from
stare decisis for
no legitimate reason, is its own loaded weapon. Weakening
stare
decisis threatens to upend bedrock legal doctrines, far beyond any
single decision. Weakening
stare decisis creates profound legal
instability. And as
Casey recognized, weakening
stare
decisis in a hotly contested case like this one calls into question
this Court’s commitment to legal principle. It makes the Court appear not
restrained but aggressive, not modest but grasping. In all those ways,
today’s decision takes aim, we fear, at the rule of law. . . .
Roe has stood for fifty years.
Casey, a precedent
about precedent specifically confirming
Roe, has stood for
thirty. And the doctrine of
stare decisis – a critical element
of the rule of law – stands foursquare behind their continued existence.
The right those decisions established and preserved is embedded in our
constitutional law, both originating in and leading to other rights
protecting bodily integrity, personal autonomy, and family relationships.
. . . Neither law nor facts nor attitudes have provided any new reasons to
reach a different result than
Roe and
Casey did. All
that has changed is this Court. . . .
Now a new and bare majority of this Court – acting at practically the
first moment possible – overrules
Roe and
Casey. It
converts a series of dissenting opinions expressing antipathy toward
Roe
and
Casey into a decision greenlighting even total
abortion bans. It eliminates a 50-year-old constitutional right that
safeguards women’s freedom and equal station. It breaches a core
rule-of-law principle, designed to promote constancy in the law. In doing
all of that, it places in jeopardy other rights, from contraception to
same-sex intimacy and marriage. And finally, it undermines the Court’s
legitimacy. . . .
[Justices writing the Casey
decision] knew that “the
legitimacy of the Court is earned over time.” They also would have
recognized that it can be destroyed much more quickly. They worked hard to
avert that outcome in
Casey. The American public, they thought,
should never conclude that its constitutional protections hung by a thread
– that a new majority, adhering to a new “doctrinal school,” could “by
dint of numbers” alone expunge their rights. It is hard – no, it is
impossible – to conclude that anything else has happened here. . . . In
overruling
Roe and
Casey, this Court betrays its
guiding principles. With sorrow – for this Court, but more, for the many
millions of American women who have today lost a fundamental
constitutional protection – we dissent.
